Kumbirai Mapfiza v Commercial Sugarcane Farmers Association of Zimbabwe & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/MS/5/2020
MASVINGO, 17 MARCH 2020
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE         JUDGEMENT NO. LC/MS/5/2020

MASVINGO, 17 MARCH 2020                         CASE NO LC/MS/CON/APP/O7/19

AND 19 JUNE 2020

In the matter between:-

KUMBIRAI MAPFIZA							Applicant

And

COMMERCIAL SUGARCANE FARMERS				1st Respondent

ASSOCIATION OF ZIMBABWE

And

THE CHAIRMAN OF THE SUGARCANE				2nd Respondent

ASSOCIATION OF ZIMBABWE APPEALS COMMITTEE N.O.

Before CHIVIZHE, J (Sitting in Masvingo Circuit Court)

For Applicant:		Mr.T. Machaya (Legal Practitioner)

For Respondent:  		Mr.C. Ndhlovu (Legal Practitioner)

CHIVIZHE, J:

This is a ruling in an interlocutory application made by Applicant for the upliftment of bar operating against her as a result of his failure to file heads of argument in time as stipulated by the Labour Court Rules, 2017. Some background information to the matter is however necessary.

The main application filed is an applicaton for condonation for late filing of an application for reinstatement of an application for condonation of late noting of a review.  The Applicant is a former employee of the Respondent.  In March 2019 through her erstwhile Legal Practitioner, Zimudzi & Associates filed an application for condonation of late noting of an application for review.  She was seeking to have reviewed the determination by 1st Respondent. Her application was duly opposed by the 1st Respondent.

In terms of Rule 26 (1) of the Labour Court Rules, she was thereafter required to file heads of argument within (10) ten days of receipt of 1st Respondent’s Notice of Response.  Her erstwhile Legal practitioners then erroneously filed an Answering Affidavit instead of Heads of Argument.  The papers were also filed outside time. The Registrar of Court through a letter dated 17th May 2019 advised the Applicant that due to her failure to comply with Rule 26 (1) (a) the matter was now deemed as abandoned in terms of Rule 46 (b) of the Labour Court Rules, 2017. The letter was received by Applicant on 4th of July 2019.

In terms of the Rules Applicant was required to file her application for reinstatement within 21 days from the 4th of July 2019.  She was therefore required to file at the latest by 2nd of August 2019.  The Applicant realizing however that she was out of time approached this court with an application for condonation for the late filing of the application for reinstatement.  The application for condonation was filed on 17th January 2020.  The 1st and 2nd Respondents responded with a Notice of Opposition on 28th January, 2020.  By virtue of Rule 26(1) (a) the Applicant was required to file heads of argument within ten days of receipt of Notice of Response.  The Applicant once again failed to file heads of argument.  On the date of hearing of the matter, the Applicant was now represented by yet another legal firm i.e. Jiti Law Chambers who according to the record assumed agency on 12th of March 2020.  Before this the Applicant had been represented by yet another firm Jula Julah Law Chambers who had assumed agency on 11th January 2020 after renunciation of agency by Messrs Zimudzi & Associates Legal Practitioners.

The Applicant through her new counsel, Mr Machaya, was seeking for a postponement of the matter and an upliftment of the bar operating against her as a result of the failure to the heads.  Mr Machaya submitted that her firm had recently assumed agency in the matter.  The Applicant had been previously represented by two other law firms.  She was placing the blame for the failure to file heads timeously on her previous Legal Practitioners i.e. Jula Julah Law Chambers.   It was Applicant view that the Court should not penalize her as she had suffered misfortune based on her previous Legal Practitioners recklessness. Her previous legal practitioners had made several procedural blunders which had resulted in the position she found herself in.  The Court was urged to instead note that the period of delay in filing Heads of Argument itself was minimal.  She also had good prospects of success in her intended review application.  Mr Machaya also submitted that it was in the interest of justice for the matter to be allowed to proceed to be determined on the merits rather than on technical points.  He had taken the initiative to prepare the Heads of Argument immediately after assuming agency and had them in his person.

Mr Ndhlovu, for the 1st and 2nd Respondents, opposed the granting of postponement.  He observed that the Registrar of Court should not have proceeded to set down the matter. He should have instead invoked Rule 46 (b) of Labour Court Rules, 2017.  He submitted that nonetheless the application before the court for upliftment of bar was just one in a string of applications made by the Applicant in the matter.  The Applicant who had changed several legal firms during the whole period could not be allowed to benefit from the recklessness conduct of her erstwhile Legal Practitioners.  The Legal Practitioners had been chosen by her. With regards the present application, there was no cogent explanation tendered before the court as to why she had failed to comply with the rules to file Heads of Argument.  The explanation that it was the last law firm who had been responsible was not sufficient reason in the absence of an affidavit from the last firm i.e. Jula Julah Chambers.  On this basis the application could not succeed.  The Respondent’s prayer was for dismissal of the application for upliftment of bar.

Mr Machaya, in reply, submitted that whilst it was correct as submitted by Respondent that Applicant had reverted to the legal firm Jula Julah Law Chambers whom she had previously abandoned, she however had lost trust in them. The position of the law was also clear that a litigant is not bound to request the same Legal Practitioners in whom she had lost trust to actually file an affidavit explaining the circumstances of the default. Mr Machaya submitted that he would make available an authority in support of this position from the High Court. After the hearing Mr Machaya did file an authority i.e. Pauline Mandigo vs Tadzoka Pswarayi and 8 others HH 244/18.  Mr Ndhlovu, for Respondent, also filed his authority for the contrary position i.e. Challenge Auto (Pvt) Ltd vs Standard Chartered Bank HE-H-221/2002.

RULING

In the court’s ruling it is clear that under Rule 26 (1) of the Labour Court Rules, 2017 where an Applicant is to be represented by Legal Practitioner such Legal Practitioner shall lodge with the Registrar within 10 days of receipt of Notice of Response, heads of arguments. Rule 26 (2) provides that no Legal Practitioner “shall” be allowed to make submissions in the absence of filing of heads of Arguments. There is use of “shall” which denotes the peremptory nature of the provision. The proviso to Rule 26 (2) makes provision for a party barred for failure to file heads of argument to (i) make a chamber application to remove the bar (ii) or make an oral application to remove the bar at the hearing of the main application or appeal.

Rule 26 (2) provides as follows;

“(2) No legal practitioner or representative shall be allowed to make submissions in a matter without having filed heads of argument:

Provided that a party who has been barred may-

(a) make a chamber application to remove the bar, and the Judge or Court may allow the application on such terms as to costs and otherwise as he or she thinks fit; or

(b) make an oral application to remove the bar at the hearing of the application or appeal.”

What are the factors the court ought to consider in an application for upliftment of bar? It is trite that in considering an application of this nature, the court has a discretion in the matter. In addition to considering the reasonableness of the excuse for the delay the court also takes into account various factors including the importance of the case, the Respondent’s interest in reaching finality in the matter, the convenience of the court and the avoidance of unnecessary delay in the administration of justice. (See United Plant Hire (Pvt) Limited vs Hill and Others 1976 (1) SA 717 (A) at 720.

Mr Machaya, in tendering his explanation for the delay in filing heads of arguments placed the blame on the two legal firms that had been hired by the Applicant prior to his law firm. The Respondent position in response was that the court should find that there is no reasonable  explanation tendered as Applicant had not tendered a supporting Affidavit from the last law firm i.e. Jula Julah Law Chambers explaining the circumstances under which the Rules had been flouted.

It is indeed a trite position at law where a litigant places blame on his Legal Practitioner for failing to comply with the Rules the Legal Practitioner concerned must file an Affidavit admitting his errors. The principle was laid in the case of Diocese of Harare vs the Church of the Prance for Central Africa SC 9-10 and also followed in Thokozile Zinondo vs Cafca Limited 64/17, where the Supreme Court stated as follows;

“The principle was laid out in the case of Diocese of Harare v The Church of the Province for Central Africa SC-9-10, where this Court held that:

“Although in argument Mr Zhou suggested that the failure to comply with the relevant Rules of court was wholly attributable to the respondent’s legal practitioners, there was no admission of negligence by the legal practitioner. . .

It would have been after the responsible legal practitioner had filed an affidavit admitting fault and explaining in some detail what happened, that the Judge would be in a position to decide whether the respondent should not be visited with the sins of its legal practitioners.  Where no factual basis for making such a distinction of culpability has been provided, the Judge would have no right to draw it.  It must follow that without an affidavit from the person responsible for the “oversight” admitting fault and explaining the circumstances under which he or she overlooked the Rules, one is at a loss for the reason why it was found necessary to state in the opposing affidavit that an “oversight” on the part of the respondent was the cause of non-compliance.  The procedure adopted by the respondent is another example of lack of care to ensure that Rules of court were complied with.”

In view of the authorities referred it is the court’s finding that absent an Affidavit from Jula Julah Law Chambers the Applicant has essentially tendered no reasonable explanation for the failure to file heads of arguments. It is also important to note that although the period of delay in itself was minimal the Applicant is a repeat offender of the court rules. The record of proceedings shows that this is a further application for condonation being made by the Applicant. The Applicant in the main application is seeking review of the decision by Respondent. He however failed to file the application for review resulting in him filing an application for condonation. That application however suffered a still birth. The Registrar of the court on 7th of May 2019 wrote to Applicant advising that the matter was now deemed abandoned in terms of Rule 46 (b) of the Labour Court Rules, 2017. This was following Applicant failure to file Heads of Arguments with 10 days of receipt of Notice of Response. The Applicant undetermined thereafter filed an application for reinstatement of the matter. He was relying on Rule 36 of the Labour Court Rules, 2017. This application which was filed by Jula Julah Law Chambers was supposed to have been filed within twenty-one (21) days of the abandonment i.e. by 2nd August 2019. Realising then he was out of time the Applicant once again filed an application for condonation for late filing of an application for reinstatement of the application for condonation for late filing of an application for condonation. It is this application which was placed before me. However at the hearing it turned out that Applicant had again failed to file Heads of Arguments resulting in the oral application for upliftment of the bar now operating against the Applicant.

This ruling is based on that oral application for the removal of the bar currently appeals in against the Applicant. Against this background it is very clear that Applicant has become a repeat offender of the Rules. There has been a deliberate flouting of the rules by the Legal Practitioners she has engaged. The repeated application for the court’s indulgence now amounts to abuse of the court. There is a point at which a litigant must suffer for his/her Legal Practitioner’s recklessness. This principle was set out in the case of Kombayi v Berkout (supra) at p 56 where KORSAH JA quoted with approval the case of Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141C where it was stated that:

“There is a limit beyond which a litigant cannot escape the results 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 ad misericordium should not be allowed to become an invitation to laxity.” (Own emphasis)

It is also apparent that the application for condonation for late filing of application for reinstatement of the application for condonation for late filing of an application for review pending before the court also does not carry good prospects of success. This is clear as Applicant once again places blame on the former Legal Practitioners for the delay in filing an application for reinstatement. The Applicant has once again not bothered to obtain a supporting Affidavit from the said Legal Practitioner to explain the circumstances under which the Rules were once again flouted.

It would appear to me that the Applicant having no prospect of success in the application for condonation the instant application for upliftment of bar stands to be dismissed.

It is accordingly dismissed with costs.

Jiti Law Chambers, applicant’s legal practitioners

Chitere Chidawanyika & Partners, 1st and 2nd respondents’ legal practitioners