Plaxedes Ngwena v Lusitania Primary School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/ 120/2021
HARARE, 23 JUNE 2021
CASE NO. LC/H/149/20
AND 27 AUGUST 2021
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/ 120/2021

HARARE, 23 JUNE 2021 					 CASE NO. LC/H/149/20

AND 27 AUGUST 2021

In the matter between:

PLAXEDES NGWENA						APPLICANT

versus

LUSITANIA PRIMARY SCHOOL				RESPONDENT

Before The Honourable Makamure J

For the Appellant			: Mr T. L. Dhlakama (Legal Practitioner)

For the Respondent			: MS J. B. Wood (Legal Practitioner)

MAKAMURE J:

This is an appeal against the manner in which the appellant and the respondent parted ways. Before the hearing commenced the court inquired of the appellant’s counsel on what decision was being appealed. Counsel for the appellant advised the court that it was the decision of the hearing officer which was being appealed. The decision (dated 2 December 2020) reads and I quote:

“(i)	That a penalty of a final written warning meets the justice of the case.

(ii)	That this final warning will run from 7 December 2020 to 31 December 2020.

(iii)	If the Respondent is not satisfied with this determination, she has the right to

appeal to a Labour Officer within 7 days from the date of receiving this determination.

(iv)	Respondent is ordered to report for duty on Monday 7 December 2020.”

Before the appeal hearing commenced a preliminary issue was raised on behalf of the respondent. Ms Wood who appeared for the respondent submitted that the Appellant’s Heads of Argument were filed out of time. There is no application for condonation before the court. For this reason, Ms Wood submitted that the appellant is barred and should not be heard.

In response Mr Dhlakama appearing for appellant conceded that he is under bar. The concession was properly made. He proceeded to make an application for condonation. Mr Dhlakama made the application in terms of R 26 (2) (b) of the Rules of this court Statutory Instrument 150/17 (The Rules). Rule 26 provides for an oral application in situations like the present one.

Mr Dhlakama also made reference to departure from the rules as provided for under rule 32 of the Rules.  Rule 32 provides as follows:

“At any time before or during the hearing of a matter a Judge or the Court may –

“(a)	direct, authorise or condone a departure from any of these rules, including an extension of any period specified therein, where the Judge or court is satisfied that a departure is required in the interests of justice, fairness and equity.

(b)	give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to the Judge of the Court to be just, expedient and equitable.”

PRELIMINARY ISSUE

Mr Dhlakama proceeded to make an oral application for condonation of late filing of heads of argument. Mr Dhlakama argued that the delay was caused by the prevailing Covid-19 pandemic which resulted in restrictions being imposed country wide. He averred that there was no prejudice caused to the respondent. Mr Dhlakama went on to refer to what he heard from his client in trying to explain how the delay was occasioned.  This was hearsay and not admissible. Mr Dhlakama further argued that the delay was “not very long” such that the respondent could have suffered any prejudice basing on the delay alone. Me Dhlakama further argued that courts are not willing to determine issues on the basis of technicalities.

In response Ms Wood pointed out that there was a Practice Direction (Direction) which was issued by the Chief Justice specifically to address how the courts should function during the duration of the Covid-19 pandemic.  In view of this Direction Ms Wood argued the appellant could not rely on restrictions since there were directions issued to ensure that courts were to function in a specified way. With respect to prejudice, Ms Wood argued that the respondent would suffer prejudice. It was argued that the application could not succeed as there are no prospects of success on the merits. Bringing such an application would therefore be prejudicial to the respondent by coming to court for a case which would not succeed. In reply Mr Dhlakama averred that it is the applicant’s constitutional right to be heard.

In an application of this nature the applicant must explain the following:

(i)	The extent of the delay.

(ii)	The reason for the delay and the reasonableness of the explanation.

(iii)	Prospects of success should the matter be heard on the merits.

See University of Zimbabwe v Kwanele Jirira & Anor SC 12/18.

The Rules provide or filing of heads of argument under Rule 26. The relevant part of the rule reads:

“26 (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)	…

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

In the present application the extent of the delay “was not very long”. It was in fact a period of days. Admittedly it was not inordinate. However, the explanation for the how or why the delay occurred completely failed to address the presence of a Practice Direction issued out on how the courts should function during this pandemic. There was therefore no reasonable explanation for the delay.

The third and final requirement is whether or not there are prospects of success should the matter be heard on the merits. The prospects of success were not addressed at all.

This left the court with no option but to agree with Ms Wood that the respondent will be prejudiced by coming to court where there are no prospects of success should the matter be heard on the merits. The applicant ought to have shed some light on the prospects of success. It is a person’s constitutional right for them to approach courts for relief. However, one cannot simply approach the court because it is their right to do so. In Ballantyne Butchery P/L t/a Dan Meats v Edmore Chisvinga & Ors SC 6/2015 the Supreme Court stated that:

“Equity cannot be invoked and applied so as to negate the law.”

Equally the right to approach the courts cannot be enforced to violate rules of procedure. It is trite that rules of court must be observed. Failure to do so would lead parties to doing as they please. This is undesirable.

Having stated the above, a case has not been made for an application for condonation of late filing of heads of argument. The application for condonation must therefore be dismissed. It is accordingly ordered that the application for condonation of late filing of heads of argument be and is hereby dismissed.

The application for condonation has been made in response to a preliminary issue. That application has failed. This being the case we now go back to the main matter in order to put everything in context. The failure of the application for condonation means that this matter is not properly before the court.

The respondent asked for costs. There is no reason why costs should not follow the cause.

Accordingly, it is ordered that the appeal, being not properly before the court:

(i)	It be and is hereby struck off the roll.

(ii)	The Appellant bears wasted costs.

Musunga Law Chambers, Applicant’s Legal Practitioners

Venturas & Samukange, Respondent’s Legal Practitioners