Judgment
No. SC 6/06
Civil Application No.
243/05
PRIZE MAHACHI v
BARCLAYS BANK OF ZIMBABWE
SUPREME COURT OF
ZIMBABWE
HARARE, FEBRUARY 1,
2006
B Chidziva, for
the applicant
M Pillay, for
the respondent
Before: MALABA JA, In Chambers, in terms of r 4 of the Rules
of the Supreme Court
The applicant has
sought to convince me that the negligence of his legal practitioners
in failing to file heads of argument timeously
in terms of the Rules
of the Supreme Court (the Rules), after receipt of the letter
of reminder from the registrar, should
not in its consequences be
visited upon him and the application for reinstatement of the
dismissed appeal refused. I do not agree.
The applicants
erstwhile legal practitioners did not only fail to file heads of
argument timeously, but failed to do so after
having been reminded to
do so by the registrar. When the appeal had been deemed abandoned
and dismissed, they made an application
for condonation of the late
filing of the heads of argument. They must have known at the time
that there was no appeal, and no
explanation has been given for such
a high degree of negligence on the part of the applicants legal
practitioners. What has
simply been done is to transfer agency to a
different firm of legal practitioners. That, however, has not
solved the problem.
There is just no explanation for the high
degree of negligence, and without an explanation it cannot be said
that the consequences
of such a degree of negligence should not be
visited upon the applicant.
Such an application
is made in terms of r 4 of the Rules of the Supreme Court. It
was stated in S v Marufuh 1971 (1) RLR 166 (A) that the Court
or Judge will not lightly use its or his or her powers to permit a
departure from the Rules unless
it or he or she is satisfied that a
reasonable explanation has been given as to why the Rules were not
complied with in the first
instance.
In this case, the
reasonable inference is that the applicants legal practitioners
were disdainful of the Rules of this Court.
Not only did they fail
to comply with the rule requiring them to file heads of argument
within the period specified in the registrars
letter of reminder,
which they received, they went on to commit two more sins. They
applied for condonation of the late filing
of heads of argument when
there was to appeal pending before the Court. They also failed to
apply for reinstatement of the abandoned
and dismissed appeal.
Worse still, no explanation was given for such conduct, as there was
no affidavit from any of the culpable
legal practitioners.
In a case of this
kind, where no acceptable explanation for non-compliance with the
Rules has been given, the applicant must show
very good prospects of
success on appeal.
In this case, there
are no such prospects of success. It is not in dispute that the
applicant was properly found guilty of conduct
inconsistent with the
fulfilment of the express or implied conditions of his contract of
employment as a senior bank employee.
In Standard Chartered Bank
Ltd v Chapuka S-125-04 it was held that a finding of guilt of an
act inconsistent with the fulfilment of the express or implied
conditions of a
contract of employment prima facie entitles an
employer to dismiss an employee from employment, unless the employee
shows that the conduct was trivial or inadvertent.
In this case the
employer adjudged the conduct that the applicant was convicted of as
serious in nature and going to the root of
the contractual
relationship. On the principles enunciated in Standard Chartered
Bank Ltd v Chapuka supra, and considering the fact the employee
in that case was also a senior bank employee, it is highly unlikely
that the decision of the
Labour Court would be set aside on appeal.
The application is
dismissed with costs.
Kantor &
Immerman, applicant's legal practitioners
Scanlen &
Holderness, respondent's legal practitioners
