Pretty Makuni v Old Mutual Shared Services & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/196/2021
HARARE, 18 OCTOBER 2021 &
CASE NO LC/H/276/21
5 NOVEMBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/196/2021

HARARE, 18 OCTOBER  2021 &			   CASE NO LC/H/276/21

5 NOVEMBER 2021

In the matter between:-

PRETTY MAKUNI					APPLICANT

AND

OLD MUTUAL SHARED SERVICES		1st RESPONDENT

DAVIES MUSOSO					2nd RESPONDENT

(In his capacity as the Appeals Officer)

Before the Honourable Kudya J

For the Applicant		Ms S. Dizwani (Legal Practitioner)

For the Respondent		Mr T. Chagudumba (Legal Practitioner)

KUDYA, J:

This matter was set down as an application for condonation for late filing of an appeal.  In response to the application the respondent employer raised with the court points in limine which points are the subject matter of this judgment.

The employer took 3 points that is (1) application was not served on time (2) Answering affidavit was improperly before the court (3) Applicant was bared for failure to file heads of argument. In the result the employer prayed that the application for condonation be struck off the roll with costs on the basis of the points raised above.

In response the applicant employee maintained that the points were ill placed.  She reasoned that all the points were cumulatively technical glitches insufficient to cause the matter to be struck off the roll. Each of the points in limine is addressed below:

Application not served on time

The applicant concedes that the application was served out of time but reasons that such a delay was at the behest of the secretary from the law firm handling her matter. She reasoned therefore that since it was the secretary who did not cause such service to be effected timeously as instructed she as the applicant should not be made to bear the sins of her lawyers or their staff.  It has been stated countless times that rules of the court need be observed at otherwise there would be chaos in the administration of justice. See Ndebele v Ncube 1992(1) ZLR 288(5) The court also needs to point out that there is a level to which a client can not escape the failure to act by his/her representative of choice. Ncube (supra).  Such is the case at hand. It is regrettable that when applicant is before the court to be condoned from non compliance she once again breaches the rules.  Such speaks to a casual approach to the matter which should not be allowed to persist. The court is satisfied that the point has merit and should succeed.

Answering affidavit

A reading of rule 14 of the labour court rules makes it clear that there is no place for an answering affidavit unless the court so directs.  In the case at hand such direction is absent so to that extent the answering affidavit is bad at law and need to be expunged from the record. The point also succeeds.

Heads of argument bar.

The applicant stated that at the commencement of the proceedings that she intended to make an oral application for the uplifting of the bar operating against her viz filing of the heads of argument.  Surprisingly she kept mum until after the employer had submitted on its points in limine thus setting the stage for the court to rule on the points in limine which it had submitted on. Being that as it may the applicant proceeded to explain that the delay in filing of heads of argument was occasioned by the fact that her lawyer was taken ill having tested positive to Covid hence for over 2 months she was frail to the extent that she could not file the heads on time.

The employer in response indicated that it came as a surprise to it that applicant was talking about the lawyer’s ill health etc a fact which she never confided in it earlier on and a fact she did not include in her belated heads.  The impression created was that the casual handling of the matter was continuing. The employer reasoned further that besides the legal practitioner who fell ill, a Mr Hove from the same law firm was privy to the matter since he handled the matter all the way from the shop floor level.  He thus could have filed heads in the absence of the legal practitioner who was ill.

The employer reasoned further that the continued shutdowns of the court also provided ample lead time for the applicant to comply but she did not.  The court is persuaded by the employer’s reasoning that even though ill health is an unavoidable occurrence facts of the matter speak to a case where heads could have been filed timeously had applicant been vigilant.

It is settled law that the law helps the vigilant and not the sluggard. Masuka v Masuka  HC-B-106-16.  The cumulative effect of the defaults speaks to a casual approach to the matter by the applicant. The matter should therefore be struck off on account of the defaults.

IT IS ORDERED THAT

The points in limine raised by the employer being merited they be and hereby succeed. Consequently, the application for condonation is struck off the roll with costs for non compliance with the rules of court.

Atherstone & Cook, Respondents’ Legal Practitioners

Hove Legal Practice, Applicant’s Legal Practitioners