On 4 October 2010, the respondent (Selemani) filed a chamber application for registration of a labour court judgment in case number 6961/10. On 18 November 2011, Justice Chatukuta granted the order in default. The applicant (Cairns Foods Limited) subsequently filed a chamber application for rescission of judgment on the basis that it had already filed a notice of opposition when default judgment was granted. After the respondent filed his notice of opposition, Justice Chatukuta directed that the rescission application be heard on the opposed roll. The respondent complied with the court rules and filed and served his Heads of Argument on 10 May 2011. The applicant failed to file Heads of Argument as required by the Court Rules. The applicant then brought an application for upliftment of the bar in terms of Order 12 Rule 83(b) of the High Court Rules 1971, which the respondent opposed.
The application for upliftment of the bar was dismissed.
A litigant will be penalized for the shortcomings of their attorney, and the court will not uplift the bar where a legal practitioner has failed to file Heads of Argument timeously due to ineptitude or administrative bungling. The rules of court must be applied strictly in relation to law firms and lawyers as opposed to self-actors. Where a legal practitioner seeks to blame staff members for procedural failures, the staff member must provide their own affidavit rather than the legal practitioner making unsupported submissions from the bar.
The court observed that it was particularly noteworthy that the respondent, appearing in person as a self-actor, had complied with the rules and filed his Heads of Argument timeously, while the legally represented applicant had failed to do so. This circumstance made the applicant's position even less defensible. The court also noted that the accepted and rich practice of courts, hinged on tradition and precedent, requires that in situations where blame is attributed to support staff, the staff member must speak through their own affidavit.
This case reinforces the principle that courts will apply court rules strictly against legal practitioners and law firms, as opposed to self-actors (litigants in person). It emphasizes that litigants will be penalized for the shortcomings of their legal practitioners, and that failure to comply with procedural requirements such as timeous filing of Heads of Argument will not be excused on the basis of administrative bungling or ineptitude. The case also highlights proper evidentiary procedures, requiring that evidence be presented on oath through proper affidavits rather than through counsel's unsupported submissions from the bar.