George Musanhu v Standard Chartered Bank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/59/2020
HARARE, 14 NOVEMBER 2019
CASE NO. LC/H/APP/338/19
AND 28 FEBRUARY 2020
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IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO. LC/H/59/2020

HARARE, 14 NOVEMBER 2019 			           CASE NO. LC/H/APP/338/19

AND 28 FEBRUARY 2020

In the matter between:

GEORGE MUSANHU						APPLICANT

AND

STANDARD CHARTERED BANK				RESPONDENT

Before The Honourable HOVE J

For the Applicant			In Person

For the Respondent 			Ms R. S. Ncube (Legal Practitioner)

HOVE J:

This is an application for rescission of judgment issued in default against the applicant on 15 April 2015.

The Respondent opposed the application and raised preliminary objections that:

1.	The application is totally defective for non-compliance with the Rules of this court in that applicant has adopted an incorrect form and;

2.	The application is out of time.

The court will first consider the preliminary issues raised.

Whether or not the application is fatally defective for non-compliance with the rules of court?

Rule 14 (1)

“A court application shall be in form LC1 and shall be supported by one or more affidavits setting out the facts upon which the applicant relied together with the draft order.”

The form used by the applicant is not form LC1 of the rules of the Labour Court, that is, Labour Court (Amendment) Rules, 2018 (No. 1) statutory Instrument 8 of 2018. (the rules)

Although the applicant denies it, it is evident that the application is not in form LC1 as required by rule 14 (1) of the rules. The only question that raised is what is the effect of non compliance with the rules of court.

In Herbstin and van Winsen’s The Civil Practice of Supreme Court of South Africa 4th ed at pp 897 – 898 the learned authors stated as follows;

“condonation of the 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 from compliance … the court’s power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper and satisfactory grounds being shown by the applicant”

Our own courts have also frowned at non compliance with mandatory provisions in the rules and stated that for the court to be lax in dealing with non observance of the rules is to invite some legal practitioners to disregard the rules of court altogether to the detriment of the good administration of justice see in this regard the case Print Africa (Pvt) Ltd v Moses Mpofu and Anor HH 249/10.

The provision of the rules that has not been complied with is couched in a language that is peremptory. It is trite that were the legislature uses the word “shall” as opposed to “may” it is insisting on obedience. A litigant has no discretion, he or she must comply or obey the provision. See in this regard the case of Air Duct Fabricators (Pvt) Ltd v Machado & Sons (Pvt) Ltd HH 64/16.  In casu, the provision under discussion states that an application shall be in form LC1. The applicant ought to have obeyed the peremptory provision.

It is again trite that failure to comply with peremptory provisions is fatal to anything that is done contrary to the peremptory provisions. In this case, an application that fails to observe the mandatory provisions is fatally defective. It cannot be cured, it is a nullity.

In the case of Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company of Zimbabwe (Pvt) Ltd and Anor (2015) ZWHHC 667 the court held that:

“An application, like summons commencing action, is the founding process by which a matter is brought to court for determination. If the application is incurably defective, as it was in this case, then there cannot be anything before the court to sit over in judgment. The purported application is simply a nullity and must be struck off the roll.”

The applicant’s application being fatally defective, it cannot be cured. It is incurably bad, a legal nullity. According to the Marick Trading case (supra) there is nothing for this court to sit over in judgment.

The court cannot proceed to decide the 2nd preliminary issue that had been raised in view of its finding on the 1st preliminary point.

The respondent has asked for costs on a higher scale on the basis that the applicant’s inaction and persistence with ill-conceived applications is causing it (the respondent) serious financial prejudice. The applicant continues to seek to pursue a matter that was initiated in the court in 2003. The applicant is also alleged to seek to pursue litigation against the respondent though in a lack lustre manner and the respondent keeps incurring legal costs and also spend an extensive period fending off applicant. The respondent clearly feels that the applicant is conducting his claims against the respondent in a most improper manner.

The facts of the dispute between the parties show that on 18 July 2008 a decision was made by this court. Judgment Number LC/H/68/08, upholding the respondents’ decision to dismiss the applicant with effect from the date of his suspension. From that time, the respondent has literally been fending off one application after another with no end in sight to this labour dispute that commenced sometime around 2002.

I am of the view that the applicant ought to think through his actions before bringing them to court. In the present matter, the preliminary point was raised in the notice of response that the application was not on the appropriate form. Instead of checking and making sure that the application was on the appropriate form, and perhaps withdraw and bring it back after ensuring that he had complied with the rules, the applicant persisted with his head buried in the sand as it were. Causing the respondent great prejudice in terms of time and costs.

In Crief Investments (Pvt) Ltd and Anor v Grand Home Centre (Pvt) Ltd [2018] ZWHHC 12 the court outlined where it is considered appropriate to grant costs on a higher scale. The court stated the following:

“A. C. Cillier’s in The Law of Costs 2nd ed p 66. Classified the grounds upon which would the court be justified in awarding the cost as between attorney and client: -

(i)	Vexatious and frivolous proceedings

(ii)	Dishonesty of (sic) fraud of litigant

(iii)	Reckless or malicious proceedings

(iv)	litigant’s deplorable attitude towards the court

(v)	other circumstances”

I am of the considered opinion that where issues are raised and a litigant buries his head in the sand this would justify an award of costs on a higher scale. That is the case that we find ourselves in. The applicant without checking whether the form he has used is in compliance, brushes off that point and insists that he used the appropriate form when he did not, this does call for an award of costs on a higher scale particularly so in view of the facts of this matter, where the applicant is reckless.

Accordingly, the court is of the view that its order in this case will meet the justice of the case.

Order:

The application be and is here by struck off the roll with costs on a higher scale, that is, attorney and client scale.

Honey & Blanckenberg, Respondent Legal Practitioners