Admire Runavanhu & 6 Others v Riders For Health

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/374/2014
HARARE, 17 JUNE 2014
CASE NO.
JUDGMENT NO. LC/H/374/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/374/2014

HARARE, 17 JUNE 2014		                           CASE NO. LC/CON/H/43/13

AND 04 JULY 2014

In the matter between:-

ADMIRE RUNAVANHU & 6 OTHERS			Applicants

And

RIDERS FOR HEALTH					Respondent

Before The Honorable F.C. Maxwell, Judge

1ST Applicant		In person

Respondent		In default

MAXWELL J:

This is an application for condonation of late filing of application for review.  A dispute arose between the Applicants and the Respondent which was referred for conciliation.  The parties could not agree and the matter was referred to arbitration.  Applicants were employed on fixed term contracts which were not renewed when they expired.  Applicants alleged that they were on contracts without limit of time and the termination of whose contracts on notice was irregular.  The arbitrator ruled in favour of the Respondent, dismissing the claim for lack of merit.  The award was rendered on 18 September 2013.

On 26 March 2014 Admire Runavanhu filed a chamber application for condonation of late filing of application for review.  The review application should have been filed within 21 days of receipt of the award in accordance with Rule 16 of this Court’s rules SI 59/2006.  For such an application to succeed Applicant must reasonably explain his delay and show that there are good prospects of success on review.  As per ZIYAMBI JA in Paul Friendship v Cargo Carriers Limited and Another SC 1/13.

“Condonation is an indulgence which may be granted at the discretion of the court.  It is not a right obtainable on demand.  The applicant must satisfy the court/judge that there are compelling circumstances which would justify a finding in his favour.  To that end it is imperative that an applicant for condonation be candid and honest with the Court.”

See also Bishop Elson Madoda Jakazi and Another v The Anglican Church of the Province of Central Africa and Another SC 10/13.

At the hearing of the matter I dismissed the application and the following are the reasons for so doing.

The first issue in this matter is on the parties before the court.  The Applicant is cited as “Admire Runavanhu and six others”.  There are no affidavits from the other six and their names are not disclosed in the application though they are mentioned in the award.  This issue has been dealt with in superior courts before.  In the case of Panganai & Others v Kadir & Sons (Pvt) Ltd HH 26/95 MALABA J (as he then was) had this to say.

“The first question is whether all the applicants are properly before the court.  Clara Panganai swore the founding affidavit in which she said she had the authority of the other twenty workers to represent them.  No affidavits were filed by any of the twenty workers authorizing her to represent them and verifying what she said in the founding affidavit.  Clara Panganai cannot represent the other workers.  Each of the twenty workers should have deposed to an affidavit identifying himself with the cause of action and approving the fact of being joined in the action.”

In Retrenched Employees of National Breweries Ltd as represented by Nathan Mudondo v National Breweries Ltd and Another SC 1212/02 CHEDA JA had this to say.

“There is not even a single supporting affidavit from any of the employees concerned.  It is just his word to that effect.  This is certainly insufficient.  There should be a proper mandate to represent parties in an action of this nature.”

In casu Admire Runavanhu deposed to the founding affidavit as “the applicant in this matter.” He then goes on to refer to “six others” in paragraph 4.  Clearly he has not proved that he has any mandate to represent the six others.  In any event the six others have not identified themselves with the matter before this Court.  For that reason I find that there is only one applicant before this Court.

The second issue is whether or not the applicant intended to apply for review or to appeal against the award.  Though the chamber application refers to application for review, pages 29-34, presumably the grounds, refer to appeal.  The introductory statement on page 29 says,

“This is an appeal against an arbitral ward (sic) ….”

Page 30 states “Grounds of Appeal”, the conclusion of which is on page 34 ending thus,

“Appellants therefore seek the intervention of the Labour Court to review the decision of the Arbitrator based on the above facts.  Copies of the submissions made before the Arbitrator are hereby attached for review.”

Obviously applicant is not sure of what he seeks before this court.  On that basis alone I would dismiss the application for non – compliance with the rules of this Court.  There are separate procedures laid out for review and also for appeal.  Assuming applicant had been clear on what he is asking the court to do, the question remains whether he has given a reasonable explanation for the delay.  The answer is in the negative. Paragraph 6 of the founding affidavit gives the reason for the delay.  Applicant states that he had travelled to Zambia and Tanzania.  No specific dates are given.  Applicant has attached Temporary Travel Documents in support of the fact that he had travelled.  The documents reveal that he was going in and out of the country from June 2013.  Interesting to note is that there are Immigration department stamps for 11 October 2013, no stamps for the rest of October and early December.  There are stamps for between 20-28 December 2013.  The last dates are in January 2014, the last stamp being dated 12 January 2014.

Applicant has not explained why he did not approach the Court when he was not travelling.  There are gaps clearly in his schedule.  He has also not explained why from January 2014 he only filed this application towards the end of March 2014.  At the hearing of matter his explanation was that he was going to Tanzania to collect motor vehicles in consecutive weeks.  It seems to me that Applicant was not eager to challenge the decision of the Arbitrator.  I find his explanation for the delay unacceptable.

In considering whether or not to grant condonation, the Court also has to ascertain whether or not there are prospects of success.  In this case I am not persuaded that there are any either on review or appeal.  On review, Applicant has not raised any procedural irregularities.  The so-called grounds of appeal are a narrative of factual issues.  On appeal the grounds also fail as no questions of law are raised.  Clearly there are no prospects of success on either review or appeal.

Respondent having defaulted Court on the date of hearing, the matter was dealt with in terms of Rule 30 (a) of SI 59/2006.

The application was therefore dismissed for lack of merit.