Border Timbers Limited v Phineas Musiyarira & 14 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/765/16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/765/16

CASE NO. LC/H/APP/705/16

HELD AT HARARE

ON 14 NOVEMBER 2016 & 2 DECEMBER 2016

BEFORE THE HON. MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

BORDER TIMBERS LIMITED				APPLICANT

AND

PHINEAS MUSIYARIRA & 14 OTHERS			RESPONDENTS

For Applicant						Ms. G. Nyamayi

For Respondents						Mrs. M.S. Musimbe

MURASI J.,

This is an application for condonation of the late filing of an application for review. Applicant employed the respondents and terminated their contracts in terms of section 12 (4) of the Labour Act, (Chapter 28:01). Applicant subsequently applied to the NEC for exemption in terms of the Labour (Amendment) Act, No. 5 of 2015. It is alleged that the NEC was required to determine the application within 14 days. The NEC thereafter deliberated on the application after the requisite period of time. The NEC made the decision that the applicant was supposed to consult the respondents before applying for exemption. Applicant thereafter made an application for a declaratory order with the High Court. The Judge declined to hear the matter and stated that applicant should have approached the Labour Court on review. This is the cause of this application.

Ms. Nyamayi for the applicant submitted that the applicant had a reasonable explanation for not having filed the application in time. She stated that applicant was of the view that the High Court would have jurisdiction to declare what the legal position was. She further submitted that the applicant was not sitting and doing nothing but pursuing the matter in a different forum. As to the prospects of success, Ms. Nyamayi argued that applicant had reasonable prospects of success as the NEC had clearly flouted the provisions of the law. She further stated that applicant’s application before the NEC should have been deemed to have been granted after 14 days when the NEC had not deliberated on the matter. The NEC therefore was deemed to have no jurisdiction after the expiry of the 14 days.

Mrs. Musimbe, for the respondents submitted that she abided by the documents filed of record. She stated that there was no cogent reason for condoning the late filing of the application as the NEC had not erred in dealing with the matter. She submitted that applicant had not engaged the respondents and therefore it was correct for the NEC to order that the applicant comply with section 12 (4a) of the Labour Act. It was argued that the applicant had approached the NEC without having paid its dues to that body and that is why the NEC had dismissed the point in limine. Mrs. Musimbe stated that applicant had not appealed against the decision of the NEC which was extant. It was further submitted that applicant had wrongly approached the High Court instead of appealing against the decision and this dilatoriness was its sole creation. The explanation was therefore not reasonable and thus unacceptable.

It is trite that where there is failure by a party to comply properly or timeously with the rules, the Court may, in its discretion condone such failure. It must always be remembered, though, that such condonation may be granted when the principles of justice and fairness demand it. The guiding principles are, firstly, that the reasons for non-compliance with the time limits should be explained to the satisfaction of the court. The second principle is that there should exist reasonable prospects of success in the main matter. It should be noted that generally the granting of this indulgence is based on discretion which should not be exercised arbitrarily but with proper judicial discretion. The decision must be based on good and sufficient cause shown by the applicant.

In casu, applicant made an application for exemption from the requisite NEC. Its matter was not determined within the prescribed 14 days. Applicant raised this point at the commencement of the proceedings before the NEC. This preliminary point was dismissed. The NEC proceeded to make a determination which applicant was dissatisfied with. The explanation tendered by the applicant is that it approached the High Court for a declaratory order as to what the legal position was. Applicant stated that the matter was subsequently set down before a Judge of the High Court. It was at that hearing that the Learned Judge informed the applicant that the correct procedure was to apply for review with the Labour Court. Applicant submits that this was the reason for the delay in making the application for review. This Court is therefore called upon to determine whether this explanation is reasonable and acceptable.

The record shows that applicant approached the High Court for a declaratory order. Respondents pointed out in their opposing papers that applicant was supposed to approach the Labour Court either on appeal or review. Applicant insisted that what it had applied for was a declaratory order which the Labour Court had no jurisdiction to grant. Is there a difference between an application for review and an application for a declaratory order? SMITH J in Econet vs Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (H) quoted GREENLAND J at page 154 B thus:

“My ruling is, in effect, declaratory, ie, to declare what the law provides. The applicant now enjoys nothing that he did not enjoy before launching the proceedings except the comfort of having had the court confirm his legal opinions. Still, as the facts reveal a competition for rights in respect of the claims, justice, common sense and good order require judicial confirmation on this issue and the seeking of a declaratory order was indicated.”

The criteria to identify a review are clearly different. CHEDA J had this to say in Masuku vs Delta Beverages 2012 (2) ZLR 112 (H) at 117 D-E:

The determining factor in the position of an application for review is the irregularity of the procedure adopted by a tribunal, board or presiding quasi-judicial body. An application for review is validated or authenticated, not by its mere title, but by the facts, which should be a complaint regarding the irregular procedure adopted by the authoritative body whose determination has prejudiced the applicant.”

And at G-H:

“The applicant’s complaint is that the procedure adopted by the respondent was irregular, in that she was not accorded a fair hearing. An argument of this nature is slanted towards reviewing the said procedure. In my opinion, it therefore has nothing to do with the declaration but is pregnant with all the necessary and essential elements of an application for a review procedure as the above authorities have clearly stated. Therefore the irregularities complained of can only be dealt with under review.”

Applicant’s dissatisfaction with the ruling of the NEC was that it lacked jurisdiction. This was clearly a reviewable issue. Would a declaratory order have changed the decision made by the NEC? The outlined reasons by JUSTICE GREENLAND quoted above show that a declaratory order clarifies the legal position of parties. It is only on appeal that the court goes further and examines the substantive nature of a decision made by a lower tribunal. This also applies to an application for review where the procedural issues are examined. Respondents pointed this out in their opposing papers. Applicant was obdurate and insisted that this was the path it was going to follow. Asked by the Court during oral submissions Ms. Nyamayi conceded that, after the remarks by the High Court Judge, she agreed that the declaratory order would not have been granted. It is apparent from the facts and path taken by the applicant that the decision must have been taken after taking legal advice. It is also evident that the decision taken to apply for a declaratory order was a wrong one. This was the reason applicant did not file the application for review timeously. The applicant was the author of its own predicament. Was the explanation tendered reasonable in the circumstances?  It is my view that the explanation turns out to be unreasonable for the reason that applicant insisted on embarking on a non-event when good counsel would have expected it to re-examine the application which it had placed before the High Court.

Applicant took the wrong route, I believe, on legal advice. In some decided cases it has been stated that errors by a legal practitioner can be visited on the litigant as the legal practitioner is the representative that the litigant would have chosen. This was held to be the case in K.M. Auctions (Pvt) Ltd vs Samuel & Anor SC 15/12. Applicant’s legal practitioners clearly misunderstood and did not appreciate the nature of the proceedings leading to the filing of the non-suited application before the High Court. It is evident that this chaotic misapplication of the law unfortunately landed at the doorsteps of the Court. My view is that applicant relied on the advice of the legal practitioners which was erroneous in the circumstances. It would be unfair and unjust to apportion the blame on the applicant. The blame should squarely rest with the legal practitioners. Even though the explanation tendered should be held to be unreasonable, the dictates of justice would require that the applicant be given a reprieve in the circumstances.

This brings me to the issue of prospects of success. Applicant avers that the NEC was stripped of its jurisdiction to deal with the matter after the expiry of the 14 days. Applicant further alleged that as the statute clearly stipulated that an applicant would be deemed to have succeeded in an application where no response was made within 14 days, applicant should then be regarded to have been exempted in terms of the statute. The record shows that applicant’s preliminary point was dismissed. The reasons given by the tribunal was that the delay was occasioned by applicant’s dilatoriness in not submitting the requisite documents in time. What is evident from the record of the proceedings before the NEC is that the issue as to whether applicant was deemed to have been exempted in terms of the law was not dealt with. This clearly requires the interpretation of the statute vis a vis the facts presented to the tribunal. In my view, this is an issue requiring adequate ventilation and determination. There are therefore reasonable prospects.

I am of the view that, for the afore-stated reasons, the application for condonation for late filing of the application for review should be granted in the circumstances.

The Court makes the following Order:

1. The application for condonation for late filing of the application for review be and hereby granted.

2. The applicant be and hereby directed to file the application for review within 14 days from the date of this order.

3. Each party to bear its own costs.

HONEY & BLANCKENBERG-		Applicant’s legal practitioners

CHAMBATI, MATAKA & MAKONESE-	Respondent’s legal practitioners