University of Zimbabwe v Kwanele Jirira and Louise Masuko

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/650/2013
HARARE, 5 APRIL 2013
CASE NO LC/H/472/2011
22 NOVEMBER 2013
JUDGMENT NO LC/H/650/2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/650/2013

HARARE, 5 APRIL 2013 &			  CASE NO LC/H/472/2011

22 NOVEMBER 2013

In the matter between:-

UNIVERSITY OF ZIMBABWE					APPLICANT

Versus

KWANELE JIRIRA							1ST RESPONDENT

And

LOUISE MASUKO							2ND RESPONDENT

Before The Honourable L Hove	:	Judge

For the Applicant			R H Goba (Legal Practitioner)

For the Respondent			K Kadzere (Legal Practitioner)

HOVE J:

The applicant in this case has not been diligent in its prosecution of this matter.

They failed to file heads within the time limits prescribed in terms of the rules. The court, Judge NDEWERE, dismissed the dispute on that basis. They decided to note an appeal against the decision of the court.

Having decided to appeal against Judge NDEWERE’s order, they fail to apply for leave to appeal within the stipulated time.

They do not have good prospects of success against the decision by Honourable NDEWERE since it is common cause and admitted that, the heads were not filed timeously.

The Labour court does have a discretion to condone any failure to comply with the rules and unless it is alleged that the court grossly failed to exercise its discretion judiciously, an appellate court cannot interfere with such discretion.

In any event, the applicant does not allege that it made an application to the court requesting that the court condones its failure to file its heads timeously. No such application is alleged to have been made before NDEWERE J. The applicant, in its heads of arguments indicates that it was prepared to make an application for condonation for the late filing of the heads of arguments. It is evident that no such application was made. How can the court be accused of misdirecting itself in failing to exercise its discretion to condone when no such application was ever placed before JUDGE NDEWERE for her to consider.

I am not convinced that the appeal has any good prospects of success. I rather agree with the Respondents’ submissions that:

“The applicant ought to have applied for condonation or an extension of time within which to file heads of arguments rather than insisting that it has a good case”.

I again accept the submissions by the respondent that the delay before seeking leave to appeal is inordinate. A diligent litigant could not have taken a year before deciding to challenge the court’s decision. This inordinate delay militates against the principle of finality to litigation which should, in the interest of justice and fairness to both sides, be preserved rather than eroded.

See in this regard the case of South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298, and S v McNab 1986 (2) ZLR 280.

In the McNab case (supra), DUMBUTSHENA CJ stated that:

“In my view, clients should in such cases suffer for the negligence of their legal practitioners. I share the view expressed by STEYN CJ in Saloojee & Anor NNO v Minister of Community Development (supra) at 141 C-D when he said:

‘There is a limit beyond which a litigant cannot escape the result of his attorney’s 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 a rule of court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.’”

The application is simply unfortunate. The applicant has not once, but on several occasions failed to be diligent and file its papers timeously. Even in this attempt to appeal an order of this court, it is again finding itself in a position that it has to seek condonation. The applicant has not been diligent and it would seriously prejudice the other side were this court to continue to indulge a litigant who is making it a habit of failing to comply and acting way out of the prescribed time limits. The applicant is again not giving reasonable explanations for its failure to comply.

The interests of justice demands that there be finality to litigation.

I therefore decline to condone the failure by the applicant to act diligently and within the time limits prescribed by the rules of court.

The application is accordingly dismissed with costs.

HOVE J

JUDGE – LABOUR COURT

Ziumbe & Partners, applicant’s legal practitioners

Hungwe & Mandevere, respondents’ legal practitioners