Sadie Motors (Pvt) LTD V JOHN Searing

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/339/2016
HARARE, 14 MARCH 2016 &
CASE NO LC/H/APP/1218/2015
27 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/339/2016

HARARE, 14 MARCH 2016 &			      CASE NO LC/H/APP/1218/2015

27 MAY 2016

In the matter between

SADIE MOTORS (PVT) LTD						APPLICANT

Versus

JOHN SEARING								RESPONDENT

Before the Honourable F C Maxwell J

For the Applicant	  Mr A Mugandiwa  (Legal Practitioner)

For the Respondent       Ms W L Chirongoma (Legal Practitioner)

MAXWELL J:

At the hearing of this matter I dismissed the application with costs and indicated that reasons would follow. These are they.

On 16 September 2015 this court granted an application in terms of Rule 19 (3) (a) for the dismissal of an application for leave to appeal to the Supreme Court as the applicant had failed to file heads of argument within the stipulated time. The present application was filed on 9 October 2015 in terms of section 92 C of the Labour Act. The applicant seeks the following order:

“IT IS ORDERED THAT:

The order of this Honourable Court of 16 September 2015 number LC/H/ORD/1432/15 granted in matter LC/H/APP/918/15 be and is hereby set aside.

The applicant shall pay the costs of this application.

ALTERNATIVELY

In the event of the court finding that heads of argument should have been filed in terms of the Rules of the Labour Court:

The order of this Honourable Court of 16 September 2015 number LC/H/ORD/1432/15 granted in matter LC/H/APP/918/15 be and is hereby set aside.

The applicant is granted condonation of late filing of heads of argument in matter LC/H/APP/918/15 and that the bar operating against it for the non-timeous filing of heads of argument be and is hereby lifted.

That the applicant shall file its heads of argument within seven working days of this order.

The applicant shall pay the costs of this application.”

The applicant argues that Rule 19 which provides for the filing of heads of argument only applies to proceedings instituted in terms of Rules 14, 15, and 16 of the Labour Court Rules. Further it was argued on its behalf that this court fell into error by coming to the conclusion that the application for leave to appeal was liable to be dismissed by reason of the non-filing of heads of argument as no rule governs applications for leave. In the alternative, it was argued for the applicant that:

The new Constitution of Zimbabwe places emphasis on the disposal of legal disputes on the merits, section 85 (3) refers.

The right to be heard should only be denied where a litigant is guilty of conduct from which the only reasonable inference that can be drawn is that he has abandoned or wanted his right to be heard and that his conduct seriously undermines the administration of justice. The applicant is not guilty of such conduct.

The courts recognise that it would be unjust to prevent a party from presenting its case before the court because of some technical breach of the rules of court.

The delay in filing the heads of argument was caused by the applicant’s legal practitioners. The sins of the legal practitioner should not be visited upon the applicant.

The applicant has good prospects of success on the merits.

The respondent denied that there are no rules governing applications for leave in the Labour Court and stated that Rule 19 applies to all manner of applications. The respondent further stated that the applicant cannot allege that because it differs with the interpretation of the rules in particular Rule 19 therefore the order by the court was granted in error. According to the respondent, this is one situation where the applicant cannot escape the sins of his legal practitioners of choice.

In heads of argument, the applicant’s Counsel embarks on an analysis and interpretation of the Labour Court Rules in general, in particular Rules 14 (1), 17, 19 (1) and 36. He concludes by comparing the proceedings in this court with those of the High Court. In paragraph 66 of the heads of argument he states:

“66.	It will therefore be absurd to expect a party to Labour Court chamber application proceedings to be under an obligation to file heads of argument when there is no such obligation on a party to equivalent proceedings in the High Court.”

Counsel for the applicant seems to be of the view that what is not done in the High Court should not be done in the Labour Court! That is not a legal argument at all. This court is a creature of statute and it operates within the confines of the law. Rule 19 clearly states:

“Where an applicant or appellant is to be represented by a legal practitioner at the hearing of the application, appeal or review, the legal practitioner shall-

Within fourteen days of receiving a notice of response to the application, appeal or review, lodge with the registrar heads of argument ….” (underlining for emphasis)

As submitted for the respondent, the rules do not state that there are some applications that are exempt. As was stated in the case of S v Robinson 1975 (4) SA 438, where the language is plain and admits of but one meaning the task of interpretation can hardly be said to arise. The language of Rule 19 is very plain. The applicant filed an application. The applicant was to be represented by a legal practitioner at the hearing of the application. The obligation to file heads of argument in those circumstances is peremptory. The legislature used the word “shall” and no excuse can release the applicant from the obligation.

The fact that the new Constitution places emphasis on the disposal of legal disputes on the merits is no excuse for non-compliance with the Rules of this Court. Counsel for the applicant made reference to section 85 (3) of the Constitution which starts off by making reference to the rules of every court, an indication that it recognises that there are rules of court. The applicant’s argument therefore is not acceptable.

It is trite that a litigant who is negligent and the author of his own misfortune will fail in his request for rescission. See Mudzingwa v Mudzingwa 1991 (4) SA 17. This is so even where the error is on the part of a legal practitioner. See Kombayi v Berkhout 1988 (1) ZLR 53; Tshivhase Royal Council & Anor v Tshivhase & Anor 1992 (4) SA 852. In casu the applicant’s legal practitioner deliberately disregarded the rules of this court on the basis that the High Court would not require him to file heads of argument in a chamber application. This is despite the fact that the application he filed was not termed “chamber application.” In my view such an attitude does not warrant the indulgence of the court.

The applicant argues that there are good prospects of success. In my view the prospects of success are immaterial in the absence of a good explanation for the non-compliance with the rules of the court. See Prosper Ganda & 13 Ors v First Mutual Life Assurance Society SC 1-05. Having not accepted the explanation for the non-compliance, I find it not necessary to consider the prospects of success.

It is for the above reasons that I dismissed the application with costs.

Wintertons, applicant’s legal practitioners

C Kuhuni Attorneys, respondent’s legal practitioners