Godfrey Madzinga v University of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/211/2020
HARARE, 1 JULY, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/211/2020

HARARE, 1 JULY, 2020		     	              CASE NO. LC/H/REV/111/19

AND 9 OCTOBER, 2020

In the matter between:-

GODFREY MADZINGA							Applicant

Versus

UNIVERSITY OF ZIMBABWE						Respondent

Before The Honorable L. Hove, Judge:

For Applicant:	Ms Magaya TJ – Magaya, Mandizvidza Legal Practitioners

For Respondent:	Mr G. Mhlanga – Chihambakwe Mutizwa & Mhlanga

HOVE J:

This is an application for review.

The applicant was employed by the respondent following allegations of misconduct, a disciplinary hearing was conducted in terms of the respondent’s code of conduct. The applicant was convicted and dismissed from employment. Aggrieved, applicant filed this application for review.

The respondent raised some points in limine. The first of which was that the applicant’s application for review was filed out of time. This objection was however later withdrawn by the Respondent.

The next preliminary point raised was that the applicant’s heads of arguments had been filed way out of time and contrary to the provisions of rule 26 (1) of the Rules of this Court. It was submitted that the applicant was obliged to file his heads of arguments within 10 days of respondent’s notice of opposition in terms of rule 26(1). Failure to meet this timeline would result in an automatic bar and if the bar is not uplifted, the applicant would have no right of audience.

The applicant indicated in response that the respondent in raising this point was jumping the gun as he intended to make an oral application of the upliftment of bar. Applicant’s representative then proceeded to make the application. The applicant prayed that their failure to file the heads of arguments in time be condoned. The rules allow the upliftment of the bar. See rule 26 (2) (b). A litigant can make an oral application. The said rule 26 (2)(b) provides as follows:

26(1)	where an applicant or appellant is to be represented by a legal practitioner or representative at the hearing of the application, appeal or review the legal practitioner or representative shall-

(a)	within ten days of receiving a notice of response to the application, appeal or review, lodge with the Registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities if any, which he or she intends to cite; and

(b)	………………………………………….

(c)	………………………………………….

(2)	no legal practitioner or representative shall be allowed to make submissions in a matter without having filed heads of arguments:-

Provided that a party who has been barred may-

(a) make a chamber application to remove the bar,………; or,

(b) make an oral application to remove the bar at the

hearing of the application or appeal.

It is thus evident from the provision of the rule that the applicant’s representative could make an oral application for the removal of the bar.

The reason given for the failure to file heads within the prescribed time frame was outlined by the applicant’s legal practitioner as follows;

She is on maternity leave. There was a breakdown in communication with the office and so anomalies occurred one of which was this failure to file the heads of arguments within the specified limits. The fault was that of the Legal Practitioner and she pleaded with the court to condone the failure and to uplift the bar.

The applicant’s legal practitioner placed reliance on the case of Seedco v Chimhere 2002 (1) ZLR 424 which, it was argued, states that the explanation for delay may include errors by lawyers. The court should, in the interest of fairness and equity uplift the bar that was operating against the applicant.

It was also submitted that the court should also weigh in the prospects of success. The applicant had high prospects of success in the application for review.

The respondent denied that the applicant had good prospects of success on review but did not seek to challenge the reasonableness of the explanation tendered. Preferring rather to leave it in the court’s hands.

In considering the reasons tendered for the delay, the court noted that the delay was solely caused by the fact that the applicant’s legal practitioner was on maternity leave and as a result there was a breakdown in communication with her office. While the court may find that the explanation may not be a good enough reason, it however notes that the fault is that of the applicant’s legal practitioner and in the circumstances of this case, it may cause an injustice to the applicant who is otherwise not at fault. The court is aware that there are cases where the court has visited the sins of a litigant’s legal practitioner on the litigant. The courts have stated that it is now settled law in our jurisdiction that litigants will not lightly escape the conduct of their legal practitioners who are their agents in such matters. If the legal practitioner exhibits tardiness and lack of due diligence in the pursuit of a client’s affairs this will no doubt be visited on the client. See Mwaera v Matinyarare and anor HH 182/91

Ndebele v Ncube SC 58/92

Khumalo v Mafurirano HB 11/04

The court is also aware however that it is undesirable that Labour matters be decided on the basis of technicalities but most decisive in this matter is the position that the court will condone if refusal may result in injustice. Although the power to condone a failure to comply with a procedural rule within a prescribed period will be exercised only upon sufficient and satisfactory grounds being shown, an application such as the present will receive favourable consideration because the court is hesitant to close the door in the face of a litigant by reason of non-compliance with a procedural rule. This is not to say that in all circumstances where a party’s legal practitioner is at fault, the litigant will escape censure, each case will be decided on its own merits. In casu however, I believe that the interests of justice will be served by condoning the non- compliance with the rule. In Mibvimbi v Maringe & anor 1993 (2) ZLR 24 the court held that the court must not seek to punish the applicant in any event for the inadvertent acts of its legal practitioners. I therefore condone the non-compliance with the rule and uplift the bar operating against the applicant.

The third and last preliminary point raised is that the applicant failed to exhaust the domestic remedies provided in terms of the relevant code of conduct. The code of conduct provides for an appeal in the event that one is not satisfied with a decision of the disciplinary committee.

The relevant code of conduct provides in section 7.1 that;

“any member of staff who is aggrieved by the decision of the staff disciplinary committee has the right to appeal to the appeals committee in writing within 7 days of being notified of the decision. The written appeal shall be addressed to the Appeals Committee and shall be handed in person………”

This is indeed a domestic remedy that is available to any member of staff including the applicant in the event that they are aggrieved by the decision of the staff disciplinary committee and may want to appeal against such decision. The code does not provide a remedy for a member of staff who may want to file a review application.

For that simple reason there are no domestic remedies available for a staff member who may want to file a review application. In which case, the applicant is well within his rights to approach this court on review.

The court has decided not to consider, at this stage, the prospects of success but to do so when considering the merits of the application for review.

Having found no merit in the three preliminary points raised, the court orders as follows;

Order

1.	The preliminary points be and are hereby dismissed.

2.	The matter will proceed to be dealt with on the merits of the application for review.

Magaya – Mandizvidza	 -	Applicant’s Legal Practitioners

Chihambakwe, Mutizwa & Partners	-	Respondent’s Legal Practitioners