Eddy Chidhuza v Delta Beverages (Private) Limited

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/109/20
HELD AT HARARE ON 26TH NOVEMBER, 2019
CASE NO.
---------




THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/109/20

HELD AT HARARE ON 26TH NOVEMBER, 2019    CASE NO. LC/H/APP/492/19

AND 22ND MAY, 2020

In the matter between:-

EDDY CHIDHUZA						      	Applicant

And

DELTA BEVERAGES (PRIVATE) LIMITED		      	Respondent

Before the Honourable Mhuri, J.

For Applicant	:	Mr. E. Maponga

(Deputy General Secretary UFAWUZ)

For Respondent	:	Mr. T. Pasirayi (Legal Practitioner)

MHURI J.

This is an application for condonation of late filing of an appeal by Chidhuza (the applicant).

The requirements which an applicant has to satisfy in such applications have been clearly stated in numerous cases.  These are:-

The degree of non-compliance;

The explanation for the non-compliance;

The importance of the case

The prospects of success in the main matter;

Interest in the finality of the case;

The convenience to the Court and respondent.

The above requirements are aptly stated in the case of

KM ACTIONS (PRIVATE) LIMITED

vs

SAMUEL AND ANOTHER SC 15/12

and have been recognised by both parties in their pleadings.

Both parties are in agreement that the degree of non-compliance (delay) is 11 eleven months.  Applicant conceded that 11 months is an inordinate delay but argued that in view of the circumstances it should not be viewed as grossly unreasonable.

In terms of Rule 19 of this Court’s Rules, Statutory Instrument 150 of 2017, applicant was enjoined to file his appeal within 21 days of receiving the decision he intends to appeal.  He received it on the 30th May, 2018 and filed this application on 20th August, 2019.  This was in excess of 11 months and in my view whether it is 11 months or more this is an inordinate delay.

Applicant’s explanation for the delay was that after he was found guilty by the Disciplinary Committee on the 22nd February, 2018, he filed an appeal with the Works Council which was supposed to determine the appeal within 6 days in terms of Clause 11.7 of the respondent’s Code of Conduct.  As a result of the Works’ Council’s failure to comply with the said provision, on the 15th May, 2018, applicant referred his matter to the Designated Agent in terms of Section 101 (6) of the Labour Act [Chapter 28:01] from where he found no joy on the 17th July, 2018 and was advised to approach the Labour Court with his appeal.  He then filed an application for condonation with this Court on the 29th August, 2018 which he later withdrew on the 22nd May, 2019 as it did not comply with Rule 22(2) which order was issued on the 17th July, 2019.

He collected the Order on the 24th July, 2019 and thereafter sought legal opinion on the way forward.  It was from this opinion that he was advised that his application for condonation and the appeal enjoyed good prospects of success.

Is the explanation for the delay a reasonable and satisfactory one for applicant to pass this hurdle?  A reading of applicant’s pleadings, Work’s Council minutes shows that:

On the 17th of May, 2019, applicant and his representative walked out of the Work’s Council appeal hearing stating that they did not want to bend the law as they had referred their matter to the Designated Agent in terms of Section 101 (6) of the Act.

The Works Council appeal hearing proceeded in their absence and issued a determination which applicant received on the 30th May, 2018.

It is this determination that applicant was to appeal against to the Labour Court.  He was so advised in the last paragraph of the determination.

Despite this advice, applicant decided to sit put and ignored it with impunity.

By the 21st June, 2018 applicant through his representative was aware of the outcome of his case at the Designated Agent as is clear from the letter dated the 21st June, 2018 his representative wrote to the Designated Agent in which he wanted the Designated Agent to issue a certificate of settlement to enable him to approach the Labour Court.

As stated earlier, applicant received and was aware of the Work’s Council determination on the 30th May, 2018. He sat on his laurels, on the belief that he was awaiting the Designated Agent’s conciliation proceedings.  He became aware of the Designated Agent’s decision at least by the 21st June, 2018.  He again sat on his laurels and did nothing.  By the 17th July, 2018 the certificate of settlement he asked for was issued.  He sat on his laurels until the 29th August, 2018 when he filed the 1st application for condonation as to why it took him more than 30 days to file the 1st application.

Further I am not persuaded by the 2nd explanation that the applicant’s further delay to file the application after the withdrawal of the 1st application was because he was waiting for a Court Order.  A notice of withdrawal is a notice to both the respondent and the Court that the litigant is withdrawing the process.  The litigant is the driver of the process which neither the Court nor respondent can deny.  The Court under those circumstances just endorses the intention of litigant.  Applicant therefore did not need to await a Court Order sanctioning the withdrawal before filing his 2nd application.  This explanation is not satisfactory at all.

It is noted that applicant did not file a supporting affidavit to support his explanation that he indeed consulted a legal expert which then caused part of the delay.

Overally, I find that the explanations by applicant are not satisfactory let alone reasonable.  He therefore fails to pass this hurdle.

As regards applicant’s prospects of success in the main matter (appeal) it is important to look at the background and the notice of appeal, in particular the grounds of appeal.

Applicant’s notice of appeal cites 5 (five) grounds of appeal.  Firstly, as rightly submitted by respondent applicant walked out of the Works Council’s appeal hearing, he cannot therefore be seen to want to challenge the Works Council determination.  Support is found in the case respondent referred me to

PAC PRINT (PRIVATE) LIMITED

vs

KUMBULA & OTHERS   SC 67/17

in which the Supreme Court stated as follows:-

“In casu the mere boycotting of their hearings by the respondents disentitled them from challenging the outcomes of the hearings or any procedure that may have been adopted during the hearings.  By their non-appearance the respondents waived their right to defend themselves.  On the other hand by bringing the application for review they sought to defend themselves.  In effect this translates to approbating and reprobating at the same time.  The law does not countenance this prevarication.  The two positions or stances are mutually exclusive and cannot co-exist.”

By walking out, applicant did himself a disservice and forfeited his right to prosecute his appeal before the tribunal aquo.

See also –

BAMANI  vs  NASSA  SC 07/01

The grounds of appeal do not all speak to the substantive issues.  Some, particularly ground 1 and 3 speak to procedural issues.  Ground 2 is not an attack of the Works Council’s decision.  Ground 4 is a factual finding by the Works Council.  It is  trite that an Appellate Court will be slow to interfere with the Court aquo’s findings of fact unless it is shown that it is grossly unreasonable.

See:	HAMA  vs  NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 (S)

Ground 5 is not a ground of appeal but argument.

Considering the above analysis of the grounds, it is my finding that applicant does not enjoy any prospects of success at all in his appeal.

The adage, there must be finality to litigation is apt in casu.  I agree with respondent’s submission that it must be allowed to move on with its affairs considering that it had abided by the Works Council’s decision.  Continuous litigation prejudices respondent in that it is continuously put out of pocket by continuously defending proceedings against it.  Not only does this cause prejudice but inconvenience as well to respondent.

McNALLY JA aptly put it this,

“It is a policy of law that there should be finality in litigation.  On the other hand one does not want to do injustice to litigants.  But it must be observed that in recent years, applications for rescission for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by individual or his lawyers, have rocketed in numbers.  We are bombarded with excuses for failure to act.  We are beginning to hear more appeals for charity than justice.  Incompetence is becoming a growth industry.  Petty disputes are argued and the reargued until costs far exceed the capital amount in dispute.  The time has come to remind the legal profession of the old adage, vigilantibus jura subveniunt – roughly translated; the law will help the vigilant but not the sluggard.”

in the case of

NDEBELE  vs  NCUBE 1992 (1) ZLR 288 (S) @ 290 C-E

These remarks apply with equal force in the instant case and I adopt them.

In the result, applicant cannot be granted the indulgence he is seeking.

Accordingly it is ordered that the application for condonation of late noting of an appeal be and is hereby dismissed with costs.

UFAWUZ – Applicant’s representative

ATHERSTONE AND COOK – Respondent’s legal practitioners