Empowerment Bank Limited v Wellington Zengeza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/67/2023
HARARE, 8 FEBRUARY 2023 &
3MARCH2023
CASE NO LC/H/1075/22
REF CASE: LC/H/590/22
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/ 67/2023

HARARE, 8 FEBRUARY 2023 &	CASE NO LC/H/1075/22 3MARCH2023		REF CASE: LC/H/590/22

REF CASE: LC/H/522/21

In the matter between: -

EMPOWERMENT BANK LIMITED	APPLICANT

WELLINGTON ZENGEZA	RESPONDENT

Before the Honourable Kudya J

For the Applicant	O. Kondongwe (Legal Practitioner) For the Respondent	T. Mupambadzi (Legal Practitioner) KUDYA, J:

This is an application for late filing of an application for leave to appeal. The employee is opposed to the grant of such condonation relief.

The test for condonation is settled See Jansen v Acavalos 1993(1) ZLR 216(5). Each of the tenets is discussed below;

Degree of non compliance and the explanation for the default

The employer was out of time by in excess of 4 months. It argues that such a delay was occasioned by the fact that its lawyers miscalculated the dies induciae. In another breath it says it became aware of the judgment only when the employee sought execution of the same. This 2nd argument however seems to fly in the face of a resolution of 4 June instructing its lawyers to appeal the decision on the confirmation of the ruling. It however argued in the oral submissions that the authority was only to the effect of appointing one Kondongwe as its Legal representative. Sadly, the resolution does not support that assertion. It states clearly that the resolution was for Kondongwe to lodge an appeal against the ruling. This therefore suggests that by 4 June the employer already knew of the judgment but was only rocked into further action by the employee’s seeking enforcement of the Labour Court decision. The sum total of the conflicting excuses given by the employer is that the employer is not being candid with the

court. Such an attitude was frowned upon in Songore v Olivine Industries 1988(2) ZLR 210(5) and militates against the grant of condonation relief. In conclusion no good excuse has been given for the default so the application cannot succeed on the first test.

Prospects of success

It is settled that condonation grant or refusal is based on the cumulative effect of the tenets of such. To that extent it is imperative that the court considers the other aspects even though as stated above the excuse proffered for the default is not plausible. As regards the prospects it is the employer’s contention that it intends to approach the Supreme Court to conclusively rule on the extent of the powers of the Labour Court in confirmation proceedings especially where the Labour Court substitutes its decision for that of the labour officer.

It also says it intends to have the Supreme Court decision on the legal effect of a party/person being a subject of 2 or more contracts of employment with the same employer. In reaction to the issue of prospects it is the employee’s view that there are no legal issues crying out for settlement by the Supreme Court. His view is that confirmation powers were carefully and clearly explained by the Constitutional Court in Isoquant v Darikwa N.O. CCZ 6/20. He also argues that the case of Air Zimbabwe v Mateko SC-180-20 also elucidated on what is meant by confirmation with amendments. He reasons that vacation of the labour officer’s decision and substituting of same with the Labour Court decision is in sync with confirming the matter with amendments.

It is this court’s view that in deed the extent of the powers of the confirmation court have been settled by Isoquant (supra). That case states clearly that the confirmation process is not a rubberstamping act but that the confirmation court should clearly be satisfied by the substantive and procedural correctness of the ruling before it can be elevated to the status of an enforceable court order. The court is thus satisfied that since such question having been adequately answered by the Constitutional Court no meaningful purpose is achieved by seeking to have the Supreme Court views on the settled issue. It also goes without saying that the obiter in Mateko (supra) demonstrates beyond doubt that where the ruling does not meet the test in Isoquant (supra) it has to be vacated and that obviously calls for the replacement of that which is vacated. In the court’s view there is no further amplification required in this regard.

As regards the issue of novation on the existence of more than one contracts side by side with the same employer that is a factual issue which in the courts view does not need the

Supreme court to make a pronouncement on. In the result the court is satisfied that there is no merited case to be taken on appeal warranting the grant of condonation. The application thus also fails in this regard.

Interests of administration of justice

The employer contends that it is in the interests of justice that it be granted condonation so that it escalates its issues to the Supreme. The court has already reasoned out that there are no legal issues worthy of determination by the Supreme Court. In that regard justice interests are therefore better served by the refusal of the condonation application.

Convenience of the court and finality to litigation

This tenet deserves no restatement judging from the conclusion that there has not been a plausible explanation for the default and that there are no prospects of success. It therefore would be an abuse of court process to clog the system with unmerited cases as the instant one. In the result the application cannot succeed on the basis of this tenet.

Prejudice

The employer has argued that no prejudice would be suffered if this condonation is granted. The court is however of a different opinion in that there is no need to grant condonation in a case which is apparent that there is no legal issue worthy of determination by the Supreme Court. Granting same would thus prejudice the interests of justice and finality to litigation. The application also fails on the basis of this tenet. In the ultimate it is clear that no good case for condonation has been made out. It should consequently fail.

IT IS ORDERED THAT

Application for condonation being without merit it be and is hereby dismissed with costs.

Dube, Manikai & Hwacha, Applicant’s Legal Practitioners

Messrs Matsikidze Attorneys at Law, Respondent’s Legal Practitioners