Custon Duri and Washington Mutore v City of Mutare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/162/2021
HARARE, 13 SEPTEMBER 2021&
CASE NO LC/H/APP/377/20
8 OCTOBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/162/2021

HARARE, 13 SEPTEMBER   2021&		   CASE NO LC/H/APP/377/20

8 OCTOBER 2021

In the matter between:-

CUSTON DURI						1st APPLICANT

And

WASHINGTON MUTORE					2nd APPLICANT

AND

CITY OF MUTARE						RESPONDENT

Before the Honourable Kudya J

For the Applicant		Lawrence Nyama (Legal Practitioner)

For the Respondent		Lonely Tavuya (Legal Officer)

KUDYA, J:

This is an application for condonation of the late noting of an appeal to the Labour court.  The background to the matter is that the applicants lost their jobs with City of Mutare following disciplinary proceedings into their alleged acts of misconduct. Internal appeals by applicants were unsuccessful.  Finally, applicants approached the labour officer with a view to him assessing the correctness or otherwise of the internal processes.  During the course of the proceedings before the labour officer it dawned on the applicants, the respondent and the labour officer that the labour officer lacked jurisdiction to entertain the matter on account of the decision in Sakarombe  NO.  v Montana Meats Pvt Ltd SC-44-20.  Upon that realisation, applicants decided to approach the labour court on appeal but by then they were out of time vis the appeal time lines.  Such lateness prompted them to file the instant application where they seek the court to indulge them in their late filing of their notice of appeal in the proceedings that led to their dismissal from work.

Applicants’ basic contention is that they were ignorant of the law in Montana Meats (supra) hence they delayed filing the appeal in the proper forum.  They state also that the mistake of law was common to the parties including the adjudicator, the labour officer so in their view it is just and proper	 that their omission be condoned.  The applicants contend also that they have good prospects on appeal.  This is so because in their view there was dearth of evidence founding their guilty verdicts and that they were treated less favourably than their counterparts whose guilty verdicts gave birth to demotion penalties instead of dismissals as happened in their case. The applicants also indicate that the delay in the filing of the appeal is not inordinate if regard is had to the fact that their dismissal penalties were upheld internally on 18 March 2020 where after they wrongly appealed to the labour officer and due to the lockdown period up to November 2020 they could not meaningfully prosecute their matter.

They state further that it is only in that November 2020 that they became aware of Montana meats (supra). In their view therefore the lodging of the instant application on 23 April 2021 can equally not be styled inordinate.  In the finality they pray that their condonation application succeeds and that they be allowed to file their appeal out of time now properly with the labour court.

In response to the application, City of Mutare maintains that no good case for condonation has been made out by the applicants. It maintains that Montana Meats (supra) was out in October 2019 and given that applicants were legally represented they ought to have been aware of the correct legal position at the time of filing their appeal with the labour officer. It concludes therefore that ignorance of the law by the applicants in that regard cannot be classified as a reasonable excuse to grant condonation.

City of Mutare goes further and maintains that the fact that it submitted to the wrong jurisdiction of the labour officer on the equal ignorance of the labour officers’ appeal powers cannot excuse the applicants’ error and found connotation. It goes further and states that the applicants do not enjoy good prospects of success in the appeal.  Its argument is that labour cases are decided on proof on a balance of probability and such standard was met in the labour dispute pitting it and the applicants. It also contends that the parity principle is no good excuse to be used to grant condonation. In their view applicants held positions higher than those of their colleagues who were demoted so there is no good case on appeal based on the parity principle.

City of Mutare contends also that it continues to suffer prejudice by being dragged to various fora by applicants something which is against Section 124 of the Labour Act discouraging multiplicity of proceedings.  It reasons that since the proceedings before the labour officer were left hanging and now that new appellate proceedings are being launched in the labour court that inconveniences it and falls foul of the need for finality to litigation. In the result it prays that the application for condonation of late noting of appeal be dismissed with costs for lack of merit.

It is settled law that the success or failure of a condonation application is premised on the cumulative effect of all the condonation tenets See Maheya v Independent African Church 2007 (2) ZLR 319(5) Stuttafords Removals v Nyamanza SC-40-20 per Mathonsi JA.

Basic condonation factors deserve no restatement as these are settled and enunciated from as far back as the old case of Jansen v Avacalos 1993(I) ZLR 216 (S).  In Ngirazi v Saurosi HC-B-84-16 Mathonsi J had this to say about the ned to consider ALL (my underling) factors in deciding on whether or not to condone a breach of the rules of court. He states as follows. “………. The court cannot condone a delay where it is apparent that there will be no success at all merely to baby sit a litigant’s ego. That would be an injudicious exercise of discretion …………….”.

Each of the condonation factors is considered below.

Extent and Reason for delay

On 11 March 2020 the Town Clerk by correspondence of that date advised the applicants that they had lost their jobs with the Council with effect from their date of suspension which was 23 November 2019.  On 20 March 2020 applicants erroneously filed their appeal with the labour officer meaning that within days of their dismissal the applicants sought to have their dismissal set aside.  Between 20 March 2020 and November 2020 the country underwent various phases of lockdown thus disrupting the calendars of the tribunals dealing with parties’ cases. Before the labour officer could conclude the appeal the applicants realised that they had taken their matter to the wrong forum.  This realisation was made in November 2020 and

such prompted the applicants to file the instant condonation application on 23 April 2021.

If the chronology of the above dates is anything to go by it means that as at 23 April 2021 the applicants were out of time to file their appeal to the labour court by close to 1 year.  It is also clear that from the date of their realisation of their default November 2020 they only sought to regularise the default some 4 months later.  It is settled law that to succeed a party has to explain the delay in filing the appeal and the delay in seeking condonation See Viking Woodwork Pvt Ltd vs Blue Bells Enterprises Pvt Ltd 1998 (2) ZLR 249 (S). As stated earlier the applicants say the delay was due to ignorance of the law and the delay in seeking condonation was the lockdown restrictions.  It is settled law that ignorance of the law is no excuse especially where the applicants were represented by counsel. Granted, there could have been a regular erroneous practice of having labour officers deal with appeals pre Montana Meats (supra) but such ignorance cannot be concluded as reasonable especially where it is assumed that the law should be known by everyone.  The fact that the respondents submitted to the wrong jurisdiction and that the umpire laboured under a false view that he had jurisdiction does not make the excuse any reasonable.  Granted there were lockdown restrictions here and there but taking into account that by November 2020 Montana Meat (supra) had become the law it can only be concluded that the delay was inordinate and inexcusable.  The court is therefore satisfied that the application cannot succeed based on the explanation rung.

Prospects of success

Applicants contends that there was paucity of evidence in their guilty verdicts.  They say the manner of investigation and conclusions drawn therefrom left a lot to be desired to the extent that if they were to approach the proper appeal forum they would succeed.  They also contend that they were not treated equally with fellow offenders who were demoted and not dismissed.  The court is persuaded by the respondents argument that standard of proof in such cases is proof on a balance of probabilities See ZESA v Dera.  1998(1) ZLR 500(s)

City of Gweru  v Mbalula  HC- H-93-14

Stemming from the above principles, if the applicants were found with bribery money in circumstances which placed them in the position of the offence it means that the appeal based on that version would thus be porous.  Equally the parity principle as explained out by respondent cannot avail applicants if regard is had to the different levels occupied by the offenders in the organisation.	In any event penalising discretion lies in the hands of the employer See Toyota v Posi SC-55-07 and Circle Cement v Nyawasha SC 60-03.  In a nutshell there is nothing on the prospects plane justifying the grant of the relief sought by the applicants.

Convenience and Prejudice

Parties agree that the aborted proceedings before the labour officer are technically looming and that makes for 2 cases between 2 parties under different fora.  That becomes prejudicial and

inconvenient to the proper administration of justice. Whilst the labour officer realised the absence of his jurisdiction in the matter it was imperative that such irregular proceedings be terminated properly than to be left hanging whilst applicants pursued fresh proceedings in the labour court.  It is clear that on the convenience plane the applicant’s case is weak too.  In the ultimate the cumulative effect of the condonation tenets discussed above leave one with the unescapable conclusion that no good case for condonation has been made out.  It should of necessity fail.

IT IS ORDERED THAT

Application for condonation of late noting of appeal being without merit in its entirety it be and is hereby dismissed with costs.

Nyama Legal Practice – Applicants’ Legal Practitioners