Beach Consultancy t/a Aviation Ground Services v Power Muza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/84/14
HELD AT HARARE 6TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/84/14

HELD AT HARARE 6TH FEBRUARY 2014		CASE NO LC/CON/H/105/13

& 14TH FEBRUARY 2014

In the matter between:-

BEACH CONSULTANCY 					Applicant

t/a AVIATION GROUND SERVICES

And

POWER MUZA						Respondent

Before The Honourable L.M. Murasi, Judge

For Applicant		Mr A Muchadehama (Legal Practitioner)

For Respondent		Mr C Chisasa (NAWU Official)

MURASI, J:

The facts presented by Applicant in this application for condonation of late noting of appeal are quite interesting.  Applicant and Respondent appeared before the Arbitrator who granted the award on 30 July 2013.  The Arbitrator ordered Respondent’s reinstatement and payment of damages in lieu of reinstatement.  Respondent reported for duty but was subsequently locked out on 2 September 2013.

Applicant avers in the application that it became aware of the award on 9 September 2013 when Applicant was served with documents by Respondent to attend quantification proceedings before the Arbitrator.  Applicant subsequently filed this application on 18 September 2013.  Applicant submits that this was not an inordinate delay on its part.  As to the prospects of success, Applicant states that the Arbitrator did not deal with the matter on the merits as he did not consider the evidence that was brought before him.  Further, Applicant submitted that it was not desirable that labour matters be decided on technicalities and therefore the Arbitrator’s findings were wrong.

Respondent submitted that Applicant was not being candid with the Court.  Respondent stated that the evidence does not show that Applicant became aware of the award on 9 September 2013.  Respondent referred to a letter written by Applicant’s Human Resources Manager to the Arbitrator dated 30 August 2013.  Respondent stated that this was an indication that Applicant became aware of the award well before the date mentioned in the application.  In fact, Respondent submitted, Applicant should not be making an application for condonation if it became aware of the award on 9 September 2013 as it was within the prescribed time.  In the letter referred to, Respondent stated that Applicant had made an offer of payment of damages in lieu of reinstatement.  On the prospects of success, Respondent stated that the Arbitrtator had to make a decision on the papers as the Applicant had failed to avail witnesses on the different dates it had promised to do so.  Respondent further submitted that the Arbitrator’s findings on the documents before him cannot be faulted.

The principles regarding condonation are aptly captured in Hebstein and Van Winsen’sThe Civil Practice of the Supreme Court in South Africa 4 ed at pages 897 to 898 where it is stated:

“Condonation of the non-observance of the rules is by no means a mere formally.  It is for the Applicant to satisfy the Court that there is sufficient cause to excuse him from compliance.  The factors usually weighted by the Court in considering an application for condonation… include the degree of non-compliance, no explanation for it the importance of the case, the prospects of success, the Respondent’s interests in the finality of the judgment, the convenience of the Court and the unnecessary delay in the administration of justice.”

In casu, the Applicant’s explanation for the delay is that it only became

aware of the award on 9 September 2013 leading to the filing of the present application on 18 September 2013.  The assumption, I take it, was that as the award was given on 30 July 2013, Applicant was out of time in terms of the Rules.  If that was the position then the Applicant’s filing for condonation was proper.  However, a consideration of the facts before the Court points a completely different picture.  Applicant’s Founding Affidavit deposed to by EckfordJere, the Human Resources Manager, states that he became aware of the award on 9 September 2013 when his legal practitioners advised him of the application for quantification of damages served upon them on 5 September 2013 by Respondent.  This is the same EckfordJere who wrote the letter dated 30 August 2013 to the Arbitrator.  The letter clearly states:

We are in receipt of an arbitral award for Mr P Muza.  We duly advise that we are not in a position to reinstate him to his former position, because the relations between the aforesaid employee and Aviation Ground Services have irretrievably broken down and we can no longer trust Power Muza.

In light of the foregoing, we are applying for quantification in lieu of reinstatement.

Please find herewith attached a copy of our proposal damages in lieu reinstatement.”

The following facts are revealed from the letter:

That the Applicant received the award well before the date in the affidavit.

That the Applicant had duly studied the award and made a decision.

That it is incorrect that Applicant only became aware of the award from its legal practitioners.

That it was Applicant who approached the Arbitrator first for quantification before the Respondent.

Applicant’s Counsel was invited by the Court to explain this anomaly in

the application.  Counsel could only say he was unable to reconcile this as he stated that it was the lawyers who brought the award to the attention of Applicant.  There was further evidence from Respondent that Applicant was informed that the award was ready and what was required was Applicant’s payment towards the costs of arbitration as Respondent had paid his half.  Applicant is said to have insisted on official communication from the Arbitrator, which was done.  Respondent submitted that this meant that Applicant was aware of the existence of the award on the date that it paid its portion of the Arbitrator’s fees.

The other issue which Applicant has not satisfactorily explained is why go the route of condonation for late noting of appeal if indeed it became aware of the award in September and was within the time frame as prescribed in the Rules?  Rule 15 of the Labour Court Rules provides:

“A person wishing to appeal against any decision, determination or direction referred to in section 97 (1) (a) or (b) of the Act, or on a question of law in connection with any arbitral award in terms of section 98 (10) of the Act, shall,  within twenty-one days from the date when the appellant receives the decision, determination or direction or award…”

Applicant avers in paragraph 3.4.1. of the Heads of Argument that:

“This would make the appeal about eighteen days out of time.”

The Court is baffled by the counting of the days by Applicant.   It is not shown from what date Applicant begins the counting.   Applicant’s Counsel sought to state that the Court should therefore find that there is no need for condonation and that the notice of appeal is properly before the Court.

The Court notes that in the explanation of the delay in noting the appeal, the Applicant has not been candid with the Court.  It was stated in Underhay v Underhay1977 (4) SA 23 that:

“It is fundamental to court proceedings in this country and in all civilised countries that standards of truthfulness and honesty be observed by the parties who will seek relief.”

The following comments were made in Bulawayo Dialogue Institute v Chief Superintendent Matyatya – Officer Commanding Police Bulawayo District and Others HB 87/2003:

“… Although generally an Applicant is entitled to embody in his supporting affidavit only allegations relevant to the establishment of his rights when he is bringing an exparte application against another party, he must make full disclosure of all the material facts that might affect the granting or otherwise of an order ex parte.  The utmost good faith must be observed by litigants making ex parte applications in placing material facts before the Court so much so that if an order has been made upon an ex parte application and it appears that material facts have been kept back, whether wilfully and mala fide  or negligently, which might have influenced the decision of the Court whether to make an order or not the Court has a discretion to set the order aside with costs on the grounds of non-disclosure.”

The Court is of the view that Applicant’s submissions are in the same league with the observations made in the above quoted case.  Applicant clearly knew of the existence of the award before 9 September 2013, yet Applicant’s Human Resources Manager sought to mislead the Court whether wilfully or negligently when it knew it had already addressed this issue to the Arbitrator before that date.  A clear look at the Heads of Argument shows that Applicant states in paragraph 3.3 that:

“The Arbitrator had not, as he was duty bound to do, served a copy of the award on the Applicant and neither had the Respondent.”

The extend of the untruthfulness is baffling to say the least.  Apart from the fact that Applicant had already written to the Arbitrator, Respondent had reported for duty with a copy of the award.  Further, Applicant had in fact locked out the Respondent because it had already made a decision not to reinstate the Respondent.

As regards prospects of success Applicant submitted the Arbitrator erred in deciding the matter on a technicality as he did not go into the merits.  Respondent stated that it was in fact Applicant who had failed on a number of occasions to adduce evidence which forced the Arbitrator to decide the matter on the papers.  Can the Arbitrator’s finding be said to be so irrational that no reasonable person would have arrived at the same decision on the same facts.  Applicant only averred that the Arbitrator did not consider the matter on the merits.  However, it is clear that the Arbitrator made the decision on the papers availed to him.  As stated in Innscor v ChimotoSC 6/12:

“A principle has now been firmly established to the effect (that) an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.”

The Court is of the considered view that Applicant has not satisfactorily ventilated in what manner the Arbitrator fell into error in making the decision that he did.  The Court finds no misdirection on the part of the Arbitrator and hence Applicant does not have an arguable case on appeal.

In the result, the application for condonation for late noting of appeal is accordingly dismissed.

There is no order as to costs.

Mbidzo, Muchedehama&Makonie, applicant’s legal practitioners