Erlo Investments t/a Engen Hwedza v Designated Agent NEC Motor Industry & 6 Ors

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/225/24
HARARE 23 FEBRUARY ,2024
CASE NO. LC/H/892/23
AND 20 MAY, 2024
In the matter between: -
Erlo Investments t/a Engen Hwedza
Applicant
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THE LABOUR COURT OF ZIMBABWE
HARARE 23 FEBRUARY, 2024
AND 20 MAY, 2024

In the matter between: -

Erlo Investments t/a Engen Hwedza
Applicant

Versus

Designated Agent NEC Motor Industry
Irvine Mafara
Prince Masimba
Denford Gurure
Audrey Motsi
Okay Maona
Lyna Zvavambire

1st Respondent
2nd Respondent
3rd Respondent
4th Respondent
5th Respondent
6th Respondent
7th Respondent

Before the Honourable L. Hove, Judge:

For Appellant : Mr. N. Nyanga
For Respondent : Mr. V. Manyeruke

HOVE J:

The matter was placed before me as an application for condonation and extension of time within which to file an appeal. I issued an order in February of 2024 dismissing the application for condonation. Request for reasons for the order was made. Here are my reasons for the order.

Factors to be considered by the court before an application for condonation can succeed include;

- The degree of non-compliance with the rules
- The explanation there of;
- The prospect of success on the merits should the application succeed,
- The convenience of the court and,
- The avoidance of unnecessary delays in the administration of justice.

See in this regard the cases of Bishi versus Secretary for education 1989 (2) ZLR 240.

Forestry Commission v Moyo 1997 (1) ZLR 254.

These factors will be discussed in turn here under;

Length of delay
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 In its founding affidavit the applicant representative stated that the delay was two months. That delay under the circumstances of this case was inordinate. The parties were engaged in a wrangle over non-payment of salaries and overtime. These are bread and butter issues and a delay of two months is clearly inordinate.

The alleged dispute of unfair labor practices had first been reported on 3 April 2023. The matter had dragged on until August 20, 2023 when a determination was made that the employees be paid in 3 installments the outstanding salaries. The applicant did not comply with the decision to pay the employees and waited until after 2 more months to apply for condonation for the late filing of an appeal and extension of time within which to file the appeal. This is a matter that ought to have been dealt with expeditiously in view of the financial prejudice being occasioned to the employees. The delay was thus an inordinate one.

**The explanation thereof**

The explanation given was that the applicant was seeking for funds to pay the employees and at the same time trying to engage the motor industry workers union of Zimbabwe hoping to secure funds. In other words, the applicant was just buying time. This cannot be a reasonable explanation for the delay. The applicant knew from as far back as April that it had to settle its employees for the underpayments but continued to drag the matter up until November of the same year before approaching the court with the application for condonation. The explanation is therefore unreasonable.

**Prospect of success**

The applicant must have good prospects of success on the merits. The record shows that the applicant has no defense to the acclaims for non-payment of salaries and overtime. The only issue that detained the parties before the National Employment Council for the Motor Industry was how the amounts owed were true be paid. The applicant had actually offered to liquidate these amounts over a period of 30 months. This is a clear indication that it accepts that it owes the employees the amount it was offering to pay. The law provides for measures to be taken where an employer is unable to pay salaries stipulated in the collective bargaining agreement. The applicant could have applied for exemption or taken measures in terms of the Labour Act [chapter 28:01] (the Act) to retrench or to avoid retrenchments but it did not. It continued to enjoy the services of the employees without paying them. This was an unfair labour practice in terms of law. There is therefore no prospect of success on the merits. The employer is merely seeking to buy time and to delay the day of reckoning.

**Avoidance of unnecessary delay in the administration of justice and convenience to the court.**

It is an inconvenience to the court to keep alive a matter in the courts when the matter is clearly dead. When Justice is demanding that the employees be paid their dues and where the employer has no defense to the claims.

**Disposition**

The authorities on this issue have made it clear that the above factors which a court will take into account in determining whether or not to grant an application for condonation and extension of time must not be individually considered but the factors must be considered in conjunction with one another and with the application as a whole. This is trite and needs no authorities. In casu, the delay is inordinate, there is no reasonable explanation for the delay, the prospects of success are poor in fact there are no prospects of success. The court is mandated to ensure the expeditious resolution of labour disputes, see section 2 A of the Act. it was for these reasons that the court dismissed the application for condemnation and extension of time of the time within which to file the appeal.
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