Lindiwe Mashayamombe v City of Harare

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/341/24
HELD AT HARARE 24TH JULY
CASE NO.LC/H/484/24
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 24TH JULY

JUDGMENT NO.LC/H/341/24 CASE NO.LC/H/484/24

AND

In the matter between

LINDIWE MASHAYAMOMBE	APPLICANT

And

CITY OF HARARE	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE, JUDGE.

FOR THE APPLICANT : L. SEREMANI FOR THE RESPONDENT :N.B. NYATHI

MAKAMURE J:

This an application for condonation for reinstatement of a matter following abandonment. It is opposed.

The background of the matter is that the applicant noted an appeal with this Court sometime in 2022.The respondent duly filed its notice of response as stipulated in the Rules of this Court, Statutory Instrument 150/2017 ( the Rules /S.I. 150/17).Thereafter the applicant’s representatives did not file heads of argument in terms of the Rules. Rule 26 governs the filing of heads of argument to be filed by or on behalf of an appellant or applicant as follows:

‘(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—

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

immediately afterwards deliver a copy of the heads of argument to the respondent and lodge

with the Registrar proof of such delivery as required by rule 11.’

This is the Rule which the applicant offended against. The matter does not end there. Where a litigant fails to file heads of argument as provided for in Rule 26(1), the Registrar is empowered to have the matter regarded as abandoned. This is provided for under Rule 46 which reads:

‘46. Abandonment of matters

Where for any reason—

proof of service is not filed by the applicant or appellant with the Registrar in the manner and time prescribed;

the Registrar does not receive heads of argument from an applicant or appellant who is represented by a legal practitioner or representative within the prescribed period; the matter shall be regarded as abandoned and the Registrar shall inform the parties accordingly:

Provided that the matter may be reinstated by a Judge in chambers on good cause shown upon application made within twenty-one days of the abandonment.’

In the present matter after the respondent had filed its notice of response but the applicant failed to file heads of argument, consequently the matter was regarded as abandoned. The applicant was duly advised. Applicant did not apply for reinstatement of the matter within 21 days. In that respect Rule 36 provides as follows:

‘36. Reinstatement of matters

Where a matter has been deemed to have been abandoned in terms of these rules, a Judge may, on good cause shown upon application by a party made within twenty-one days of the party becoming aware of the abandonment, order that the matter be reinstated.’

After a period of one year and eleven months the applicant seeks condonation for late application for reinstatement of the appeal. The main reason for the delay in approaching this Court is that the applicant’s erstwhile representative failed in their duty to represent the applicant. This ,it was submitted ,led to the applicant finding out the status of the appeal long

after the matter had been considered abandoned. This was in spite of her regularly checking with the Trade Union representing her about the progress in the matter and being reassured that they were simply waiting for a court date. She stated in her affidavit that it was only after she checked with the respondent that she found out that the matter had since been dismissed. The applicant enlisted the services of her current legal practitioners in order to ensure that the matter is finalized properly. Thereafter the applicant put in place measures leading to the present application. An affidavit was also submitted on behalf of the trade union confirming that one of their officials failed to diligently deal with the applicant’s matter; that the official , one Jecheche had since been dismissed from the Union’s employ .In explaining both the degree of non-compliance and the explanation thereof the applicant put the blame on her erstwhile representative. The applicant then proceeded to address the prospects of success as follows. She was in the employ of the respondent. Respondent’s clients paid for use of stalls  from where these clients conducted their business. The applicant took it upon herself to collect the sums due to the respondent in cash. She would then use her or husband’s bank card to swipe (or transfer) the equivalent to the respondent. She did not issue any receipts to the clients . She submitted that she was assisting the clients in question . She further submitted that the respondent did not suffer any prejudice. In her view her conduct did not warrant dismissal.

The position of the respondent, on the other hand, is that the applicant ought to have complied with provisions of the Rules as they are peremptory. The respondent argued that the applicant or her representatives were alerted as far back as 22 June 2022 of the need to file heads of argument. It was argued on behalf of the respondent that reliance cannot be placed on the non- action of one of the trade union’s employees particularly the assertion that the employee was subsequently dismissed as there is no documentary proof of such dismissal and the reasons thereof. It was further argued that the applicant ought not have waited for a period of close to two years without doing anything. It was further stated in the affidavit deposed to on behalf of the respondent that the applicant does not even state, among other things, the date that they became aware of the status of the matter . This, it was averred on behalf of the respondent , makes the applicant’s founding affidavit ‘vague and embarrassing.’ On the prospects of success, it was argued that there were none. This it was argued was because the respondent’s investigating team found the applicant in possession of cash which she had collected from several stallholders. This it was further argued, was contrary to her duties as market assistant. The applicant admitted her wrongdoing. The respondent urged the Court to dismiss the application as granting it would send a wrong message to litigants   charged with serious

offences and this would result in the abuse of courts even where there were no prospects of success.

The following are some of the authorities relied on by the applicant: Read v Gardener and Anor SC70/2019; Bessie Maheya v Independent Africa Church SC 58/07. The following are some of the authorities cited on behalf of the respondent: RIOZIM Ltd v Dixon-Warren N.O.HH192/2020;Redan Gas (Private) Limited v Mashora (702 of 2022)[2022] ZWHHC 702; Mudenda v Mudenda HC1706/2008;Viking Woodwork (Private ) Limited v Blue Bells Enterprises 1998 (2) ZLR249 (S); Kereke v Maramwidze & Anor SC 86/21.

It is trite that in order for an application for condonation to succeed the applicant must satisfy requirements which include the following as stated in the case of Ismail Moosa Lunat v Mohammed Patel SC47/22:

The extent of the delay.

The reasonableness of the explanation for the delay;

The prospects of success on appeal;

The respondent’s interest in the finality of the judgment in his /her favour;

Convenience of the court ; and

Avoidance of unnecessary delay in the administration of justice.

See also Viking Woodwork (Private ) Limited v Blue Bells Enterprises(above)

In the case of United Plant Hire(Pty) Ltd V Hill & Ors 1976 (1)SA 717(A) it was stated that:

‘It is well established that, in considering applications for condonation, the Court has a discretion , to be exercised judicially upon a consideration of all the facts; and that in essence it is a question of fairness to both sides. …” It is settled in this jurisdiction that where the explanation for the delay is unsatisfactory then the prospects of success of the appeal must be really great before the court can exercise its discretion to condone the non-compliance. “’

In the present case the extent of the delay is one year and eleven months. The delay is said have

been caused by lack of diligence on the part of the applicant’s representative. In Redan Gas (Private)Limited v Mashora (above) the Court referred to the case of Saloojee and Anor v Minister of Community Development 1965(2) SA 135 where it was held that ‘ there is a limit beyond which a litigant can escape the results of his legal practitioner’s lack of diligence.To hold otherwise would have disastrous effects upon

the observance of the rules of this court.’ I respectfully associate myself with those sentiments. The legal practitioner or in this case the trade unionist was the applicant’s choice and the applicant cannot avoid the consequences of the representative’s conduct. Further in Redan Gas (Private ) Limited v Mashora ( above) reference was made to the case of Simon Musanhu v Mari Nyoni &Anor SC134/04 where it was stated that a delay of one month under the circumstances of that case was considered inordinate. In the present matter since there was no documentary evidence from the trade union confirming that the officer who is alleged to have caused the delay was dismissed as a result of his failure to handle the applicant’s case diligently, the court will err on the side of caution and view the explanation tendered with suspicion and disbelief. Most importantly however, is the question of prospects of success. In the present case the applicant admitted her wrongdoing. Even had the applicant not admitted any wrongdoing, the respondent’s investigating team found her in possession of funds which she had collected from the stallholders. That was sufficient proof of the commission of an offence. Collection of the said money did not form part of her duties. Both in her affidavit and in submissions made on her behalf , her position was that her conduct or misconduct did not warrant dismissal. What this means is that the real issue which the applicant is concerned with is the question of the appropriate penalty. It is trite in this jurisdiction that the question of what the appropriate penalty is , is the prerogative of the employer. Where an employer has taken a serious view of a misconduct committed by an employee and penalized the employee with dismissal, then the question of a penalty less than dismissal does not arise. Circle Cement v Chipo Nyawasha SC60/03. What this therefore means is that the applicant does not enjoy prospects of success on appeal. There is also the need of finality to litigation. Ndebele v Ncube 1992(1)ZLR 288.Where there are no prospects of success it is pointless to grant the application . In the result the application fails.

In view of the foregoing , IT IS ORDERED THAT:

The application for condonation for reinstatement of an appeal be and is hereby dismissed.

There is no order as to costs.

J. MAMBARA AND PARTNERS, APPLICANT’S LEGAL PRACTITIONERS. GAMBE LAW GROUP, RESPONDENT’S LEGAL PRACTITIONERS.