Shelter Kachirika v Judicial Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/108/2021
HARARE, 22 JUNE 2021
CASE NO. LC/H/APP/363/20
AND 27 AUGUST 2021
XREF LC/H/APP/167/20
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/108/2021

HARARE, 22 JUNE 2021	 				CASE NO. LC/H/APP/363/20

AND 27 AUGUST 2021					 XREF LC/H/APP/167/20

In the matter between:

SHELTER KACHIRIKA						APPLICANT

versus

JUDICIAL SERVICE COMMISSION				RESPONDENT

Before The Honourable Manyangadze J

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

For the Respondent	:	 Mr R. Matsikidze (Legal Practitioner)

MANYANGADZE J:

This is an application for condonation of late filing of an appeal. The application arises out of a determination handed down by the respondent’s Disciplinary Authority on 6 August 2019.

The factual background to the matter, briefly stated, is that the applicant was employed by the respondent as a Clerk of Court, and was based at the Karoi Magistrates’ Court, Mashonaland West Province. On 17 June 2019, the applicant was charged with misconduct in terms of s 47 (2) (b) of the Judicial Service Regulations, Statutory Instrument 30 of 2015, the charge being;

“any act involving corruption or dishonesty”

The factual particulars of the charge are that the applicant received a bribe from a litigant in a maintenance variation case, for onward transmission to the trial magistrate.

On 2 August 2019, the Disciplinary Committee which heard the matter in the first instance found the applicant guilty as charged, and recommenced a penalty of dismissal. In a decision dated 6 August 2019, the Disciplinary Authority confirmed the determination of the Disciplinary Authority. The applicant wishes to appeal the Disciplinary Authority’s determination. The noting of the appeal has gone outside the dies induciae, hence the application for condonation.

The factors considered in an application for condonation for non – compliance with the court’s rules are well established. They include;

(i)	the degree of non-compliance

(ii)	the explanation for the non-compliance.

(iii)	prospects of success on the main matter.

(iv)	importance of the case.

(v)	avoidance of unnecessary delay in the administration of justice.

See:

(i)	Kumbirayi v Berkhout 1988 (1) ZLR 53

(ii) Bishi v Secretary for Education 1989 (2) ZLR 242

(iii) Kodzwa v Secretary for Health 1999 (1) ZLR 313

(iv) United Plant Hire (Pvt) Ltd v Hills & Ors 1976 (1) SA 717

In most cases, the success or failure of the application turns on the first 3 factors i.e. degree of non-compliance, explanation for it, and prospects of success. The court weighs each factor against the others, and normally the cumulative effect of all the factors resolves the case.

In the instant case, the date of the determination in question is 6 August 2019. It was received by the applicant on 19 August 2019. The present application was filed on 7 December 2020. That constitutes a 16 month delay.

In her explanation for the delay, the applicant has decided to break down the periods of delay, instead of looking at it as one long stretch. Her papers show the following chronology of events:

(i)	The initial application for condonation was filed under Case No. LC/H/APP/590/19 on 17 October 2019. The applicant wants to down play this period by saying it was less than a month. It is puzzling how the period 19 August 2019 to 17 October 2019 can be said to be less than a month.

This application was struck off the roll on 5 June 2020 for being fatally defective, in that a wrong form had been used.

(ii)	A second application was filed on 16 June 2020 under LC/H/APP/167/20. This was again struck off the roll on 18 November 2020, as there was no supporting affidavit. The founding affidavit was deposed to by the applicant’s legal practitioner.

(iii)	The instant application is a third attempt at seeking condonation. It has a founding affidavit by the applicant. It has no supporting affidavit from the legal practitioner on whom much of the blame is laid for the delays.

From this background, what emerges as the gist or main thrust of the explanation for the delay is that it was caused by the applicant’s legal practitioner. There is particular emphasis on this point in paragraph 7 of applicant’s heads of argument, wherein is stated:

“It is submitted that the Applicant was out of time for a period of less than a month. Applicant is cognizant of the fact that her initial application was struck off the roll for being defective and that was owing to her legal practitioners of record who prepared the papers. Indeed, such a delay is inconvenient to this Honourable Court and to the Respondent but she must not be punished for the sins of her legal practitioners. Applicant has shown that she is keen for the matter to be resolved on the merits and has shown that the failure to file an appeal within the dies induciae was neither deliberate nor intentional.”

Another dimension to the applicant’s explanation for the delay is lack of funds. She avers that having lost her job, she was unable to raise funds in time to engage a legal practitioner.

In my view, nothing much turns on this aspect. It has been seen that in just over one month, this problem was resolved in that applicant was now represented, as she found legal practitioners who undertook to represent her amicus curiae. Use of the term amicus curiae appears to be a misnomer. The legal practitioner has not appeared as a friend of the court, in the ordinary sense in which that expression is used, where the amicus curiae appears as a third and neutral party who assists with submissions that may turn the matter either way. He has appeared as the applicant’s representative, without charging her at all or after charging her nominal fees. It seems to me a more appropriate term would be pro bono or pro Deo, rather than amicus curiae.

Be that as it may, what is important to note is that the applicant, at some point, managed to get legal representation. That explains only the initial period of delay.	Thus, for the rest of the period, September 2019 to December 2020, the issue about inadequate funds becomes irrelevant. The case was now being handled by a legal practitioner.

Much of the delay is therefore ascribed to the applicant’s legal practitioners.  The delay was largely, if not solely, due to the procedural errors by her legal practitioner which caused repeated applications for condonation.

Courts are generally reluctant to punish litigants for the sins of their legal practitioners. Chidyausiku J (as he then was) highlighted this general position in Bishi v Secretary for Education, supra, at page 243 G:

“Courts are very reluctant to visit the client with the sins of his legal practitioner but there has to be a limit beyond which the court will not go.”

As the learned judge cautioned in the above-cited passage, there is a limit to the general principle. This was pointed out in Saloojee & Anor N.O. v Minister of Community Development 1965 (2) SA 135 @ 141 C – E:

“There is a limit beyond which a litigant cannot escape, the results of his attorneys’ lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court ………  The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with the Rules of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.”

In casu, it has been seen that there were repeated infractions of basic procedural requirements. On 5 June 2020, a wrong form was used. On 18 November 2020, no supporting affidavit was filed.

The third and instant application is again afflicted with a fundamental detect. There is no supporting affidavit from the legal practitioner who was at fault.

At the beginning of the hearing, Mr Matsikidze, for the respondent, sought vitiation of the application by way of a point in limine. The point raised was that there was no supporting affidavit from the applicant’s legal practitioner. The court pointed out that this was more a question of the sufficiency of evidence. Whether or not there is a supporting affidavit is an issue that goes to the question of whether or not the applicant has substantiated her explanation that the delay was due to her legal practitioner’s blunders.

The parties’ legal practitioners eventually agreed that the absence of a supporting affidavit goes to the substance of the matter - whether or not evidence was placed before the court substantiating applicant’s assertion that the fault for the delay lay not in herself, but her legal practitioner.

As already indicated, the absence of the legal practitioner’s affidavit, substantiating the averments made by the applicant, constitutes a material gap in the evidence the court relies on in determining whether good cause has been shown for the granting of condonation. The need for such an affidavit was underscored in the case of Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa SC 9/10. Malaba DCJ (as he then was) stated, at

page 14 of the cyclostyled judgment:

“… It would have been after the responsible legal practitioner had filed an affidavit admitting fault and explaining in some detail what happened, that the Judge would be in a position to decide whether the respondent should not be visited with the sins of its legal practitioners. Where no factual basis for making such a distinction of culpability has been provided, the Judge would have no right to draw it. It must follow that without an affidavit from the person responsible for the “oversight” admitting fault and explaining the circumstances under which he or she overlooked the Rules, one is at a loss for the reason why it was found necessary to state in the opposing affidavit that an “overnight” on the part of the respondent was the cause of non-compliance. The procedure adopted by the respondent is another example of lack of care to ensure that Rules of court were complied with”

In the instant case, contrary to this clear legal position, the applicant insisted that a supporting affidavit is not necessary. In this regard, Mr Kondongwe, on behalf of the applicant, told the court that the explanation by the applicant in her founding affidavit was sufficient.

This contention reflects a serious oversight. The founding affidavit makes no reference to a supporting affidavit from the legal practitioner, and does not explain why there is no such supporting affidavit. Mr Kondongwe seemed to suggest that he could, from the bar, give that evidence, which should have been contained in the supporting affidavit. He said he could do so on the strength of Rule 12 (1) of the Labour Court Rules on informality of proceedings. He told the court during oral submissions;

“There is no need for a sworn affidavit. Even from the bar you can make such an admission. I do so on the strength of Rule 12 of the Court’s Rules. Evidence may still be admissible in terms of this rule. In so far as evidence by the Legal Practitioner in question, if required to buttress the case, it is so tendered.”

In the face of authority to the contrary, the legal practitioner is telling the court that his submissions from the bar should be accepted as evidence. That reflects a cavalier attitude in the handling of his client’s case.

I do not think informality has to be stretched to that extent. It would lead to an untidy hearing, where evidence is led from the bar by the legal practitioner presenting the case on behalf of his client. I believe that is why, in the Diocesan Trustees case, supra, the Supreme Court emphasized that there must be an affidavit from the person responsible for the “oversight” in question.

It is the court’s view that this is a case where the applicant cannot escape the consequences of her legal practitioner’s negligence. What compounds the applicant’s predicament is that the legal practitioner has a tendency to persist with the applications, despite the omissions on his papers having been pointed out in the notice of opposition. In the first application, Shelter Kachiridza v Judicial Service Commission LC/H/123/20 where a wrong form was used, the court, in its judgment indicated that it was disabled from condoning the infringement because the applicant insisted no wrong had been committed.

It is significant to note the remarks by Gwaunza JA (as she then was) in Gazi v NRZ 2015 (2) ZLR 208, at 213 C – E, which emphasize the fact that handling a labour matter does not mean that basic procedural standards should be disregarded:

“Firstly, labour matters are civil in nature and while the same standards of procedural stringency as are required in ordinary court matters may not always apply, I do not believe those standards are necessarily ousted merely on the basis that the matter at hand, is a labour dispute. This is particularly so where serious legal principles are at issue and where, as in casu, a party who belatedly clamours for such procedural relaxation is himself the author of the very predicament that he later finds himself in. It goes without saying that, but for his own default, the appellant could have properly raised the new, legal point he now seeks to raise, and adduced evidence on it, during the disciplinary proceedings before the Area Manager.

It is my view necessary in this respect to remind parties in labour disputes that it is important to show respect for laid down formalities in the adjudication of disputes that concern them. Showing disdain for such formalities and later expecting the court to turn a blind eye to such conduct, in my view smacks of double standards and a lack of seriousness on the part of the litigant concerned.”

Mr Matsikidze, during oral submissions drew the court’s attention to this undesirable propensity on the part of the applicant.

“It seems it’s a habit by applicant to insist on a point even though it has been raised. From the date notice of response was filed until today, applicant is still steadfastly denying that it is necessary. Applicant is simply saying invoke rule 12. We are clearly dealing with a very stubborn applicant, who does not care about the rules. My learned friend was actually leading evidence from the bar. Needed to place it on affidavit. Applicant should have withdrawn this application in time.”

In the circumstances, the court finds that no good cause has been shown for the granting of the indulgence of condonation, based on the extent of the delay and the explanation for it.

Even if the court were to proceed to the other factor, of prospects of success, it does not buttress the application.

The evidence on record shows that the applicant was known to the litigant from whom the bribe was allegedly accepted, despite her assertions to the contrary. The evidence shows that there was a lengthy cellphone call history between the two. This close acquaintance was concealed from the complainant, who was seeking an upward variation of maintenance from the litigant in question.

The judgment of the tribunal of first instance, viz the Disciplinary Committee, was based on findings of fact and credibility of witnesses, which an appellate court cannot easily interfere with.

In the circumstances, it is the court’s considered view that the application for condonation cannot be upheld.

The respondent has asked for costs on an attorney and client scale. Since the failure of the application has been largely due to the legal practitioners’ negligence, I do not consider it just and proper that the client be burdened with such costs. Costs shall remain on the ordinary scale.

In the result, it is ordered that:

1.	The application for condonation of late filing of an appeal be and is hereby

dismissed.

2.	The applicant bears the respondent’s costs.

Dube, Manikai & Hwacha, Applicant’s Legal Practitioners

Matsikidze Attorneys-At-Law, Respondent’s Legal Practitioners