Zimbabwe Educational Scientific, Social and Cultural Workers Union v Shame Mangoma & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/500/14
HARARE ON 18th MARCH, 2014
CASE NO. LC/H/434/12
AND 1 AUGUST, 2014
JUDGMENT NO. LC/H/500/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/500/14

HARARE ON 18th MARCH, 2014				             CASE NO. LC/H/434/12

AND 1ST AUGUST, 2014

In the matter between

ZIMBABWE EDUCATIONAL SCIENTIFIC, SOCIAL

AND CULTURAL WORKERS UNION				–	APPLICANT

And

SHAME MANGOMA					-	1ST RESPONDENT

And

HON L. CHIBVONGODZE				- 	2ND RESPONDENT

Before The Honourable E Makamure J.

For Applicant:	Advocate R. Chingwena

For 1st Respondent :	Mr T.G. Mboko (Legal Practitioner)

For 2nd Respondent: No Appearance

MAKAMURE  J,

This is an application for condonation of late filing of Heads of Argument. Heads of Argument, in terms of the Rules are filed within 14 days of receiving a notice of response.

In the present matter an appeal and a review application were noted on 26th June 2012. On 17th December 2012 a notice of response was issued by the Registrar. Thereafter nothing seems to have happened from the applicant/appellant’s side. The applicant/appellant did not file the requisite Heads of Argument. On 9th September 2013 the 1st respondent made an application for the dismissal of the appeal in terms of Rule 19(3). The respondent was entitled to do so. Rule 19(3) provides;

“(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 may be, 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 matter 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.

the defaulting party shall (if no application under paragraph (a) is made or granted) be barred and the Court may deal with the matter on the merits.”

Only on 6th March 2014 the applicant/appellant filed an application for condonation for late filing of Heads of Argument. The application was made way out of time. This is the application under consideration. Clearly the Applicant has failed to comply with the Rules. There appears to be no reasonable explanation as to why there was such an inordinate delay in filing the Heads. Further, when the parties appeared before the Court, they were, on 6th September 2013, ordered as follows:-

“By consent postponed sine die to enable 1st Respondent to regularize legal representation and for parties to ensure that the papers are in order in terms of the Rules.”

By then the applicant was already aware of its obligation to apply for condonation of late filing of its Heads. Again nothing was done until March 2014. Surely no matter how good the prospects of success on the matter for review may be, that does not remove the obligation by a party to comply with the Rules. There must be a reasonable explanation for the non-compliance (see P.K. Bosman Transport Works Committee & Ors. vs. Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794). A delay of more than twelve months by a legal practitioner to file the requisite Heads or to comply with the Rules of the Court is unacceptable. The delay is inordinate.

The applicant now asserts that the other party is the one which is not in compliance with the Rules. That is inappropriate. The appellant must purge its non-compliance first before it can make allegations against the other party.

The application for condonation fails.

Accordingly it is ordered that the application for condonation of late filing of Heads of Argument be and is hereby dismissed with costs.

Matsikidze and Mucheche – Applicant’s legal practitioners

Donsa-Nkomo & Mutangi Legal Practice – Respondent’s legal practitioners