Shomet Industrial Development v Vasco Olympio & 4 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/811/2016
HARARE, 5 OCTOBER 2016 &
CASE NO LC/H/232/2009
30 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/811/2016

HARARE, 5 OCTOBER 2016 &			              CASE NO LC/H/232/2009

30 DECEMBER 2016

In the matter between

SHOMET INDUSTRIAL DEVELOPMENT			        APPLICANT

Versus

VASCO OLYMPIO							1ST RESPONDENT

And

TSVANGIRAI GARAKATA					2ND RESPONDENT

And

LEONARD MITENGO						3RD RESPONDENT

And

GABRIEL MAPFUMO						4TH RESPONDENT

And

KANUKAI ZHOU							5TH RESPONDENT

Before the Honourable Makamure J

For the Applicant	Ms Y Kundodyiwa  (Legal Practitioner)

For the Respondents	C Kwaramba  (Legal Practitioner)

MAKAMURE J:

This is an application of rescission of a judgment of this court granted on 9 December 2014 (Order No L C/H/806/14) but date stamped 26 May 2015.

The order reads:

“The appeal filed on 18th August 2009 in case number LC/H/232/09 be and is hereby dismissed for want of prosecution.

The respondent shall pay costs on an ordinary scale.”

The history of this matter is as follows: The applicant filed an appeal with this court on 18 August 2009. The respondents filed their response on 2 December 2009. Thereafter there was not activity in the case. The rules of this court require that:

“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 clearly outlining the submissions he or she intends to rely on and setting out authorities, if any, which he or she intends to cite; and…” (my emphasis)

The applicant did not comply with the above rule. Rule 19 (3) (a) of the rules of this court provides as follows:

“3)	Where heads of argument that are required to be lodged in terms of sub rule (1) or (2) are not lodged on behalf of the applicant, appellant or respondent as the case maybe, 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 21 unless, at any time before the mater is set down, the party who is not in default applies to a President of the Court in Chambers for the application, appeal or review to be dismissed or granted, as the case maybe;” (my emphasis)

The failure to comply means that the applicant was barred. Seeing that the applicant had not file their heads of argument as required by the rules, the respondents on 19 September 2014, made an application for a default judgment in terms of the Rule 3 (a) (above). The application may be made without notice to the other party (Rule 19 (4)). Thus the applicant’s failure to comply with the rules of this court led the other party to make an application. This resulted in the default order LC/H/806/14. That order was not made in error. It was made in compliance with the rules.

It is trite that in an application for rescission of a judgment the applicant must show good cause why the order or judgment should be rescinded.

It is clear that the respondents only made the application for dismissal of the appeal some five (5) years after they had filed their response after observing that there was no action by the applicant. What this means is that the applicant had more than ample time within which to comply with the rules but it did not do so. It is an established principle of our law that failure to comply with rules is fatal to proceedings. (See Chubb Union Zimbabwe Private Limited v Chubb Union Workers Committee SC 1-2001). A flagrant breach of the rules as shown by the applicant cannot be condoned.

The applicant had a period of five years within which to comply. After the compliant party had sought the necessary relief, the applicant suddenly asserts that it was not given a chance to respond. The applicant is being untruthful and is in contempt of the rules of this court. That is an attitude which must be condemned. In any event, the applicant has to satisfy the usual requirements in order for the relief of rescission of judgment to be granted. These are that:

The applicant gives a reasonable explanation for the default;

The application is bona fide and not a delaying tactic;

There is a bona fide defence to the claim. (See Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S).

It is common cause that the applicant did not comply with the rules. There is no explanation why they only reacted after the respondents had exercised their right.

The applicant has not given a bona fide explanation as to why they did not comply with the rules. Their failure to explain can only lead to one result, that is, the application cannot succeed. In Anna Marange v Joseph Chiroodza SC 29-12 where the Supreme Court held:

“It is clear that there is a point at which this Court cannot tolerate the degree of lack of diligence by a legal practitioner. The applicant cannot escape the consequences of the negligence of her legal practitioner.” (See also Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S).

Equally, in the present case the applicant cannot escape the consequences of failure to comply with the rules of this court by their legal practitioner. There was no reasonable explanation for the delay. The delay is clearly inordinate. Considering the circumstances in this case, the application appears not to have been done in good faith and therefore amounts to a delaying tactic.

Accordingly it is ordered that the application for rescission of judgment be and is hereby dismissed with costs.

Hussein Ranchhod Company, applicant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners