Merchant Bank of Central Africa v Michael Manzini and Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/32/22
HELD AT HARARE ON 2ND FEBRUARY, 2022
CASE
JUDGMENT NO. LC/H/32/2022
CASE NO. LC/H/REV/04/18
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/32/22

HELD AT HARARE ON 2ND FEBRUARY, 2022      CASE NO.LC/H/REV/04/18

AND 11TH FEBRUARY, 2022

In the matter between:-

MERCHANT BANK OF CENTRAL AFRICA			APPLICANT

AND

MICHAEL MANZINI						1st RESPONDENT

AND

VIVIAN MANTIBIZA 						2ND RESPONDENT

AND

ESTATE LATE BRIAN KASHIRI					3RD RESPONDENT

AND

ARBITRATOR KARE N.O.					4TH RESPONDENT

Before the Honourable Makamure, J.

For the Applicant	:		Mr. O. Kondongwe (Legal Practitioner)

For the 1st-3rd Respondents:	Mr. K. Ngove (Legal Practitioner)

For the 4th Respondent:		No Appearance

MAKAMURE J.

This is an application for review of the quantification of an arbitral award made in favour of the respondents.  The award was made on 10 November 2017 although the dispute between the parties dates back to 2011.  The matter has been outstanding for a long time.  Parties particularly the 1st to 3rd respondents’ legal practitioners are either new or do not take this seriously.  This is said in view of the following parties are well aware that this matter has been outstanding for a long time.  In this judgment 1st to 3rd respondents will be referred to as “the respondents”.

On 11 January, 2022 parties appeared in order for the matter to be heard.  When they do appeared the respondents’ legal practitioners were not sure what or which matter was to be argued.  Admittedly there are two matters which have to be heard.  However it is up to the parties to identify the matter and prepare for a hearing. On 11th January 2022, after the failed sitting I directed that on the next court sitting both matters were to be heard separately but consecutively.  The matter was thereafter postponed to the 27th of January, 2022, a period in excess of two weeks.  As of the 11th of January filed of record were the applicant’s heads of argument which were filed as far back as 6th March, 2018.  The same legal practitioners represented the parties when those heads of argument on behalf of the applicant were prepared and filed.  So since 2018 each party has retained the same legal practitioners.  This also should mean that the respective legal practitioners know their clients’ matters.

The record was sent to me while awaiting the 27th January 2022.  On the 26th of January the respondents’ legal practitioner asked through my Clerk for the record.  I released the record and it was duly returned to me that same day.

On the 27th of January, 2022, the respondents legal practitioners made an application in terms of Rule 26 (1)(b), that is, an application for upliftment of bar and then file the respondents’ Heads of Argument.  The application was as opposed.

Rule 26 provides for “Heads of Argument” 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 –

Within ten days of receiving a notice of response to the application, appeal or review, lodge with the registrar heads of argument clearly outcome 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.

No legal practitioners 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 –

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

Make an oral application to remove the bar at the hearing of the application or appeal.

Where a respondent is to be represented by a legal practitioner or a representative at the hearing of the application, appeal or review, the legal practitioner or representative shall –

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 within ten days of receiving the heads of argument in terms of sub-rule (1)(b), or at the time when the notice of response is filed with the Registrar in terms of rule 14(2)(b)(ii), 19(2)(b)(ii) or 20(2)(b)(ii) if the applicant or appellant is not represented by a legal practitioner or representative; and

immediately afterwards, deliver a copy of the heads of argument to the applicant or appellant and lodge with the Registrar proof of such delivery.

Where heads of argument that are required to be lodged in terms of sub-rule (3) are not lodged on behalf of the respondent, within the period or at the time specified in those provisions –

The Registrar shall nevertheless set down the application, appeal or review for hearing in terms of rule 28;

Subject to sub-rule (2),the defaulting party shall be barred and the court may according to the nature of the case, or as the justice of the case requires –

enter a default judgment against the defaulting party; or

proceed to determine the matter.” (Emphasis added)

The application was made in terms of Rule 26(1)(b).  The averment was that a chamber application was not made in order to avoid confusion given the history of the matter and that there would be many applications.  Mr. Ngove who appeared for the respondents submitted that they had to verify with the respondents’ erstwhile legal practitioners.  That is when it was realised that heads of argument were not filed.  It was submitted that the applicant would not suffer any prejudice.  It was submitted that it was only on the 26th of January 2022 (i.e. a day before the court hearing) that the heads of argument were drafted.  Reference was made to the case of as authority for the submission that once a party is barred the matter is treated as unopposed unless the party so barred makes an application for the upliftment of the bar. Mr. Ngove also averred that the bulkiness of the record contributed to why the application was made orally. Mr. Ngove submitted that it was for this reason that an application for upliftment of his bar was being made orally in court.

In response Mr. Kondongwe who appeared for the applicant averred that the application was made, simply because the rules provided for such an application to be made.  Mr. Kondongwe argued that there was no explanation as to why the heads of argument were not filed in time.  The said heads were not on record.  Mr. Kondongwe argued that the applicant’s heads of argument were filed on 6 March 2018 – over three (3) years back.  It was argued that the court cannot simply uplift the bar without any explanation.  There is no explanation as to when exactly Mr. Ngove started dealing with the matter.  Even then, when parties appeared on 11 January 2022, Mr. Ngove ought to have noticed that as of that date, heads of argument had not been filed.  This was particularly so as the court had directed that the two matters would on the next date of hearing be heard consecutively and without fail.  Mr. Kondongwe referred to the provisions of Rule 26 that the court may either a default judgment or proceed to determine the matter.  Mr. Kongongwe submitted that the application for upliftment of the bar had no merit.  He urged the court to either enter a default judgment or proceed to determine the matter without hearing the other side as they have no right of audience.

In response Mr. Ngove told the court that the failure to file heads of argument was due to the bulkiness of the record.  He proceeded to submit that they had since prepared the heads of argument in anticipation of the hearing for the application of upliftment of bar.

To begin with it is noted that the application was made in terms of Rule 26(1)(b) of the Rules of this Court.  This rule provides for what the applicant or appellant is required to do.  Rule 26(3) and 206(4) provides for where the respondent is represented by a legal practitioner.  In addition to basing application on a wrong rule, there was no explanation as to why, if the applicants’ heads of argument were served on them as far back as March 2018, there was no compliance with Rule 26(3)(a) and (b).

In the case of RINOS TERERA v GEORGE LENTAIGNE INGRAM LOCK AND THREE OTHERS SC 93/21 the Supreme Court was dealing with an application for condonation of non-compliance with the Supreme Court Rules.  The Supreme Court state that –

“It is trite that where a litigant realises that they have fallen foul of court rules, they ought to apply for condonation without delay.  The litigant must give an acceptable explanation for the failure to comply with the particular rule and for the delay in approaching the court seeking condonation.  See VIKING WOODWORK (PRIVATE) LIMITED v BLUE BELLS ENTERPRISES (PRIVATE) LIMITED 1998 (2) ZLR 249 (S) at 251 one must be candid with the court in their explanation in order to satisfy the court that the explanation is reasonable and deserves the court’s empathy …”

In ZIMSLATE QUARTZITE (PRIVATE) LIMITED AND THREE OTHERS SC 34/2017 the Supreme Court stated, at page 6 of the cyclostyled judgment, that:

“In an application of this nature and indeed in any application which is necessitated by a breach of the Rules, it is imperative that condonation of failure to comply with the rule in question be applied for because in each case the applicant is seeking an indulgence from the court”

And at page 7 the Supreme Court stated:

“An applicant who takes the attitude that indulgences, including that of condonation are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

I respectfully associate myself with the above remarks.  The applicants (respondents in the main) took a view that an application for upliftment of a bar is there for the asking.  That was clearly wrong.  They need to take the Rules of this court seriously.  Even if it is considered that it is undesirable for labour matters to be decided on the basis of technicalities, where there has been flagrant disregard of rules, the indulgence sought cannot be granted in ZIMPLATS v MARKO PHUTI SC 21/16 the Supreme Court held that while the Labour Court is vested with the duty to exercise equity in dealing with matters before it that has to be done within the confines of the law that is, both the Labour Act [Chapter 28:01] and the Labour Court Rules.

In the present matter the legal practitioners lacked seriousness to the extent of basing their application on the wrong rule.  That cannot be condoned.  It is trite that there is a degree to which a litigant cannot bear the sins of their legal practitioner.  In this respect I respectfully associate myself with what the Supreme Court stated in DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE v THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA SC 9/10, that is:

“One cannot consider absolving the respondent from the consequences of lack of diligence committed by its legal practitioners…”

In casu it is clear that the legal practitioners were not diligent.  They did not comply with the rules and simply came to court so that they can rely on the principle that labour matters should not be resolved on the basis of technicalities.

Unfortunate as it maybe, the application for upliftment in the present matter is absolutely without merit.  It cannot be sustained.  The application is accordingly dismissed.  The respondents are barred for failure to comply with the provisions of Rule 26(3) and (4).

The rule provides for court to either enter a default judgment or determine the matter without hearing the other party.

In the circumstances of this case the mere fact that the application was premised on the wrong is as good as saying that there was no appearance.  So the lack of diligence of the legal practitioners has resulted in what amounts to appearance by the applicant in the absence of the respondents.

Accordingly it is ordered as follows:

Default judgment for failure to comply with Rule 26(3) and 26(4) is entered in favour of the applicant in terms of the prayer.

The arbitral award handed down by Arbitrator Kare be and is hereby set aside.

DUBE, MANIKAI & HWACHA – Applicant’s Legal Practitioners

MANGEYI LAW CHAMBERS – 1st-3rd Respondent’s Legal Practitioners