Wilson Wasifa v Ministry of Home Affairs & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/525/2016
HARARE, 9 MAY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/525/2016

HARARE, 9 MAY 2016				     	    CASE NO. LC/H/512/15

AND 9 SEPTEMBER 2016

In the matter between:-

WILSON WASIFA								Appellant

And

MINISTRY OF HOME AFFAIRS & ANOR				Respondents

Before Honourable L. Hove, Judge

For Appellant	Mr S. Chako (Legal Practitioner)

For Respondents	Mr C. Chopamba (Legal Practitioner)

HOVE, J:

This is an application in terms of Rule 22.  The respondent failed to file its notice of response within the prescribed time. The brief History of the matter is outlined below:

On 12 October 2015 the matter was referred before me in terms of rule 22 of the Labour Court rules. The respondent had been served with an application for review and an appeal.  The appeal and the application for review had been duly served on the respondent on 9 June 2015.  Certificates of service were filed as of record to prove such service.

The respondent was required in terms of the rules to file their responses both to the application for review and the appeal within 14 days.  The respondent failed to file their responses in terms of the rules.

On 20 July 2015 the appellant/applicant filed his heads of argument and referred this matter to be heard in terms of rule 22. The respondent was automatically barred.

Without seeking to have the bar removed or the indulgence of the court to file its response out of time the respondent filed its response on 12 August 2015, Needless to say, the response was improperly before the court.  The matter had already been referred to a Judge to be dealt with in terms of Rule 22.

In terms of this rule, a party who is in default could appear and show good cause why they were in default.  The court could then postpone the matter to allow the defaulting party to regularize its papers or can decide to proceed with the matter.

The notice of response did not attempt to explain why the respondent had failed to comply with the rules of court in so far as they relate to the time period within which they ought to have filled their notice of response.  The position that then obtained was that the respondent was barred.  The notice of response that was filed out of time was improperly before the court.

The appellant/applicant prayed that the court proceeded on the basis that both the appeal and the application for review were not opposed.

The respondent admitted that their responses had been filled out of time but requested that the court postpones the matter to enable them to file an application for condonation for filling their responses out of time.

After considering the submissions by both sides the court ordered as follows;

That the matter be postponed to enable the respondent to apply for condonation showing good cause why they failed to comply with the provisions of the court’s rules.

This was on 12 October 2015.

The respondent did not file the application for condonation from October 2015 up until December 2015 when the applicant/appellant wrote to the Registrar seeking that the matter be re-enrolled.  The Registrar again set the matter for hearing.  No application for condonation had been made as had been ordered by the court.

After the respondent’s lawyers had received the notice of set down on 6 May 2016 some 7 months after they had sought and obtained a postponement to enable them to file their application for condonation, they filed their application for condonation.

The matter had been sent down for 9 May 2016 and the application was filed 2 days before the new set down date.

On the date of hearing, the appellant/applicant submitted that the practice notice number 3 of 2013 directs that when a matter is postponed indefinitely it must be enrolled again within 3 months.  The respondent ought to have filed their application within the three months allowed by law in terms of the practice directive if not much earlier when they were allowed to file their application for condonation.  They failed to comply with the requirement and the court should proceed to treat the matter as unopposed.

In response, the respondent sought to place their application for condonation before me to consider the same but I declined to do so as the application had not been properly set before me.

An explanation was given that the delay in filing the application was caused by the fact that they were waiting for the Registrar of the court to give them records of other matters that had involved the same parties.  These records were required to prove that the applicant/appellant had initiated several applications and so it was excusable for the respondent to have assumed when it was served with the appeal and the review that the documents related to some old case and to file them away without considering them nor filing a response.

I do not accept that this is a reasonable explanation for the delay in filing the application for condonation.  The application could still have been filed like it was eventually filed without those records and the courts attention could have been drawn to the multiple applications or appeals on the basis of case numbers that the respondent ought to have.

The delay in filing the application was inordinate.  Even though the court had not given the dead line, a diligent litigant or legal practitioner ought to have known that there was need to act forthwith to protect their client’s interests.

Under the circumstances, waiting for about 7 months before doing anything  was grossly unreasonable and the delay is clearly inordinate.

The appellant’s legal practitioner was negligent in failing to act forthwith.  His explanation is unreasonable.

The courts have stated and it is trite that where the breach of the rules is flagrant, the court may refuse condonation irrespective of the merits of the matter.

In casu the failure to act timeously was due to gross negligence on the part of the respondent.  The respondent had sought the indulgence of the court for the court to postpone the matter to enable it to regularize its papers seven months had gone by and still the papers were not regularized.  The court cannot indulge the respondent again.  The circumstances of the matter are such that the court should not come to the respondent’s assistance.

The extent of the delay i.e. 7 months, and the unreasonable explanation thereof are such that the court should not indulge the respondent again.  The respondent ought to have taken advantage of the indulgence initially granted it.  It did not but came back to court 7 months later to essentially seek the same indulgence.  In the case of Bosman Transport Workers Committee & Ors v Diet Bosman Transport (Pty) Ltd 1980 (4) SA 794 the Court stated that were there has been a flagrant breach of the rules of court in more than one respect and where in addition there is no acceptable explanation for the period of delay, the applicant should not be granted the indulgence whatever the prospects of success maybe.

There has also been serious prejudice on the part of the appellant/applicant who has had to wait from June 2015 to have his rights decided.  The delay is clearly prejudicial. The appellant/applicant was not aware as to whether a defence would or will not be proffered.  If the court were to indulge the respondent under these circumstances, the mandate to provide expeditious resolution to disputes will have been flouted. A litigant cannot be indulged and wait seven months before acting upon and taking advantage of the indulgence extended.  But only come to court 7 months later to seek to be reindulged.

There must be finality to litigation.  It is a policy of law that there should be finality to litigation.  See the case of Ndebele v Ncube 1992 (1) ZLR also Forward Kodzwa v Secretary for Health SC 50/99.

It is a fundamental principle dictated by public policy that as far as possible, there should be finality to litigation.

The law will also help the vigilant and not the sluggard.  The respondent in casu was sluggard and the court cannot continue to rise to his assistance and grant him further indulgences.

The respondent’s action in failing to prosecute its defence timeously was not only grossly negligent but it is also an abuse of court process.  The court must protect itself from such abuse.  See in this regard the case of Masimbe v Masimbe 1995 (2) ZLR 31 (S).

In the circumstances, the application that the proceedings be further stayed to allow the respondent to pursue an application for condonation is denied.

The respondent is barred.

The application for review and the appeal succeed as being unopposed.

The appellant/applicant is to be reinstated into his position with effect from the date of this judgment. Should reinstatement no longer be tenable, the appellant/applicant is to be paid damages as agreed between the parties or as assessed by this court.

Mushangwe & Company, appellant’s legal practitioners

Thodhlana & Associates, respondents’ legal practitioners