Catherine Katsande v Petrozim Line (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 23 MAY, 2023
JUDGMENT NO. LC/H/240/23
CASE NO. LC/H/863/22
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 23 MAY, 2023

AND 24 AUGUST, 2023

In the matter between:-

CATHERINE KATSANDE

Versus

PETROZIM LINE (PVT) LTD

Before the Honourable L. Hove, Judge:

For Appellant		: Advocate T. Mpofu For Respondent	: P. Dube

HOVE J:

JUDGMENT NO. LC/H/240/23 CASE NO. LC/H/863/22

Applicant

Respondent

This is an application for condonation and also for leave to appeal this court’s judgement number LC/H/250/19 to the Supreme Court.

When the matter was heard the respondent raised a preliminary point and it was that the application being a composite one, was not in terms of the Labour Act [chapter 28:01] (the Act) and neither was it in terms of the Labour Court Rules, 2017. The Labour Court being a creature of statute could only exercise powers that are derived from the enabling statute and or regulations. It was argued that this application was irregular and defective because it was not in terms of the Act and neither was it in terms of the rules. It was argued that the application must be struck off with costs. In response, advocate Mpofu argued that since the parties had consented to the order to reinstate, this implied that there was a case to reinstate and the respondent should be estopped from raising the point that there is no proper application before the court. Secondly, he submitted that the position that the Labour Court is a creature of statute speaks to the court’s substantive powers and not its tactical approaches to litigation. It was argued that the labour Court has authority to hear applications for condonation and also

applications for leave to appeal. The court has these powers in terms of its enabling Act and in deciding to hear the cases together, it is merely tactical and does not require a rule or other authority to be able to deal with combined applications. He argued that the Supreme Court had already decided in the cases of Reed v Gardner SC 70/19N t P.11 and Mangwiro v Zac SC 94/19 and Zac v Mangwiro SC 11/22 where similar issues were raised that the court can hear composite applications. It was submitted that the respondent was being overly fastidious in its approach to technicalities and this is not desirable in Labour matters.

The respondent denied that the fact that they had consented to the reinstatement of the matter did not in anyway mean that they were not going to challenge the application when it was eventually placed before the court. It consented to the matter being reinstated. The respondent remained free to challenge the application. The respondent further argues that the case of Zac v Mangwiro is distinguishable as it was talking to the Supreme Court’s powers to regulate its own process. The Labour Court on the other hand has no powers to regulate its own processes. He also referred to Pomurema and anor v telone SC 86/2014 and stated that all the cases are dealing with application before the Supreme Court and not the Labour Court.

It was not disputed by the applicant that the Act and the rules do not provide for composite applications but it was argued that the Act and the Rules need only to give the authority to deal with the particular applications which was the case in casu. The fact that the authorized applications can be heard together was not an issue that went to the Court’s authority but was merely a tactical issue which a Court can adopt for its convenience.

I agree with Mr. Mpofu that the issue of combining two applications does not speak to the court’s authority. One will need to be satisfied that the Court has the authority to deal with the applications in terms of the Act. If the Court has the authority, how it may decide to deal with the applications is really up to the Court, and the litigants. The Court will not be doing something that it is not authorized to do but hearing the authorized applications in a manner and way that is convenient and will secure an effective and also the expeditious resolution of disputes in line with section 2A (f) of the Act. The Supreme Court can regulate its own processes. The Labour Court, is in terms of the above provision of the Act, also empowered to regulate its own processes in a manner that will best achieve the effective and expeditious resolution of disputes. The Court is also empowered in terms of its rules, to authorize or condone a departure from any of its rules where the Court is satisfied that the departure is required in the interest of justice and fairness. The Court can also direct as to procedure in respect to any matter not expressly provided for in its rules as may appear to the Judge to be just, expedient and equitable see Rule 32.

It is my considered view therefore that the Court is authorized to regulate its own processes. The distinction that the learned representative of the respondent is seeking to rely on is really nonexistent. The Labour Court can regulate its processes and in terms of its own rules. The authority of Zac and Mangwiro (supra) is fully binding on this Court.

I however do not accept Mr. Mpofu’s argument that estoppel arises in the circumstance of this case. The respondent agreed to have the matter reinstated. This was not to agree with the applicant’s position in the issues that would be raised by the applicant after the matter is reinstated. For this reason, the argument found no favour with the Court.

On the authority of Zac v Mangwiro (supra) the application is found to be properly before the Court in its current form.

Whether or not the applicant should be condoned for failure to file the application within the prescribed time limits.

The requirements for an application for condonations are, set out in Forestry Commission v Moyo 1997

ZLR 254 (S). These are,

The delay involved is not inordinate.,

That there is a reasonable explanation for the delay

That there are good prospects of success should the application be granted

The possible prejudice to the other party should the application be granted

The reasons tendered for the delay is that applicant’s legal practitioners of choice made a mistake, he made an oversight and was not alive to all the relevant issues. It is the applicant’s legal practitioner’s admitted mistakes that have been tendered as reasons for the delay.

The position has become settled in our jurisdiction that litigants cannot lightly escape the conduct of their legal practitioners who are their agents is such matters if the legal practitioner exhibits tardiness and lack of due diligence in the pursuit of client’s affairs. The Court stated this in the case of State v Ncube SC 58/92 that such tardiness will no doubt be visited on the client. See also Mohadi & Others v Lunga & Others HB 112/14

I am of the view that tardiness on the part of the Legal Practitioner cannot be regarded as a reasonable explanation for the delay.

Whether or not the applicant has good prospects of success on the merits should she be condoned.

The applicant’s prospects of success are in my opinion slim. It is accepted that it is an important consideration in applications to amend pleadings that real issue will be placed before the Court. This is however not the only consideration as the Court must also consider prejudice to the other party. See the case of Midlands State University v Galaxy Engineering HH 425/18.

The Court’s view is that the respondent will be prejudiced if it were to grant the proposed or intended amendments. The amendments would have the effect of totally changing the issues that had originally been placed before the Court. New issues were being sought to be introduced which had not been placed before the Court.

The fact that the Court can call for the hearing of new evidence under S. 90 A of the Act cannot be the basis for allowing amendments that bring in new issues to the prejudice of the respondent.

Mr Mpofu argued that the fact that a mistake was made cannot prevent the Court from doing justice between the parties. Justice should not only be viewed from the applicant’s position. Justice must be done between the parties, both parties. It is not just and fair to allow the applicant who has made a mistake in laying out its case, to gain the advantage of recasting its claims and introduce totally new issues. It is not for the Court to suggest the new grounds and state how many should be introduced. The Court can only assess the case on the basis of what has been placed before it.

The Courts have stated that where there is an unsatisfactory explanation for the delay, so much greater must be the prospects of success on appeal. See Kuszakan Dabrowski et Uxor v Steel N.O 1966 RLR 60 (AD). This position was reiterated in the case of Ngirazi v Saurosi & anor HB 84/16 where it was stated that;

“it is settled in this jurisdiction that where an explanation for the delay is unsatisfactory then the prospects of success on appeal must be really great before the Court can exercise its discretion to condone the non-compliance”

The explanation for the delay is unsatisfactory and the respondent does not enjoy “really great” prospects of success on the merits of its case.

The applicant’s founding affidavit has failed to canvass other important considerations like the degree of non-compliance, the importance of the case and the avoidance of unnecessary delays in the administration of justice.

In the result, the applicant has failed to make a good case for the condonation. The application for condonation must therefore fail. Having found thus, it becomes unnecessary to consider the application for leave to appeal which becomes improperly before the Court for having been filed out of time. The breach has not been condoned.

Order:

The application for condonation be and is hereby dismissed with costs on the ordinary scale.

The application for leave to appeal being improperly before the Court be and is hereby dismissed.

Judge