G T Mvududu V Chitungwiza Municipality

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/583/2016
HARARE, 14 JULY 2016 &
CASE NO LC/H/APP/332/16
23 SEPTEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/583/2016

HARARE, 14 JULY 2016 &				    CASE NO LC/H/APP/332/16 23 SEPTEMBER 2016

In the matter between

G T MVUDUDU								APPLICANT

And

CHITUNGWIZA MUNICIPALITY					REPONDENT

Before the Honourable F C Maxwell J

The Applicant in Person

For the Respondent	Ms L Shambamuto (Legal Practitioner)

MAXWELL J:

This is an application for condonation of late filing of an application for review. On 9 October 2015 the applicant noted an appeal against an arbitrator’s decision. The appeal was challenging procedural issues. On 18 March 2016 the appeal was dismissed. On 24 March 2016 the applicant filed the present application.

The applicant states that six months delay is not inordinate. He also states that the labour officer has no jurisdiction in the matter and if condonation is not granted it will be tantamount to allowing an unlawful act to stand. The applicant avers that there will be no prejudice to the respondent if the application is granted. He prays for the granting of the application.

In opposition the respondent avers that the applicant was in wilful default as he was advised in response to his appeal that he had adopted a wrong procedure. The respondent contends that the applicant does not proffer a reasonable explanation for the delay, and does not address his prospects of success. The respondent points out that the applicant raised an issue that led to the arbitrator recusing herself. The respondent further points out that it has been unnecessarily dragged to court and is out of pocket because of the applicant’s propensity to file frivolous applications. The respondent prays for the dismissal of the application with costs.

The applicant filed twenty-two pages of heads of argument, thirteen pages of replication to the respondent’s heads of argument and seventeen pages of oral-cum-written submissions. A perusal of all these documents reveals that he is a person who is fascinated with law. What is also evident is that whilst he is familiar with legal terms, he does not understand their application or import. He makes reference to section 124 of the Labour Act [Chapter 28:01] as legal impediment. He concludes that in terms of the audi alteram partem and the nemo judex in sua causa rules he could not have pursued simultaneously appeal and review proceedings until judgment was first delivered on the appeal proceedings. The applicant’s understanding is contrary to the rules of this court which clearly state that one can file appeal and review proceedings at the same time. Rule 15 (3) is relevant. The applicant does not explain why he did not heed the warning from the respondent given as early as when the notice of response to the appeal was filed in 2015. He simply hammers the point that he acted promptly after the judgment of this court in March 2016.

For an application of this nature to succeed, the applicant must demonstrate that there is a good cause for the court to exercise its discretion in his favour. Such good cause can be shown by:

the degree of non-compliance;

the explanation thereof;

the prospects of success on the merits;

the importance of the case;

the convenience of the court; and

the avoidance of unnecessary delay in the administration of justice.

See Bishi v Secretary for Education 1989 (2) ZLR 240, Fuyana v Moyo SC 54-06.

The factors to be considered are not taken independently but are considered cumulatively. In my view what is of paramount importance is the explanation for the delay and the prospects of success on the merits.

Explanation for the delay

The applicant seems to be of the view that since this court pronounced in March 2016 that he followed the wrong procedure, his actions are to be viewed as from that time. Clearly this is wrong. The period of delay is considered from the time the decision sought to be challenged was made. In this case, the applicant is aggrieved by a decision made in September 2015. That he filed an ill-fated appeal timeously is neither here nor there. As stated above, nothing precluded him from pursuing both appeal and review proceedings simultaneously. As stated by the respondent, the period of pursuing an irregular appeal does not constitute an explanation for the delay in filing pleadings. More so in the circumstances of this case where the applicant was warned through a preliminary objection in the notice of response.

Rather than explain the reasons for the delay, the applicant went to great lengths to explain how the arbitrator was wrong. It is not the arbitrator’s decision that is before this court in these proceedings. It is the applicant’s non-compliance with the rules of this court. Even though the applicant punctuates his submissions with the statement “applicant is not a  qualified lawyer but a self-actor”, the rules of the court apply to lawyers and self-actors alike.

In response to counsel for the respondent’s submission that the applicant did not take the advice she had given him on the procedure to be followed, the applicant stated that he did not find the advice from the interested party valid. The interested party was stating a legal position. The applicant only has himself to blame for not taking advantage of the advice. I find that no reasonable explanation has been given for the delay.

Prospects of Success

It is not clear what the applicant intends to achieve through the review proceedings. What is clear is that he strongly objects to a labour officer dealing with his matter. It is common cause that the arbitrator recused herself from dealing with the matter.  A letter to that effect is on record. Having recused herself, the arbitrator referred the matter back to the Ministry of Labour. Whether the matter will be dealt with by a labour officer or an arbitrator is an issue that is yet to be determined. The applicant cannot seek an order from this court at this stage to address an anticipated eventuality. It is common cause that labour officers allocate matters to arbitrators. After recusing herself, the arbitrator could not refer the matter straight to another arbitrator. The referral is done by the labour officer. It is yet to be seen whether the labour officer will proceed in terms of the amendment or comply with the court order and have another arbitrator deal with the quantification. In my view the applicant jumped the gun. His arguments against retrospectivity and the case law he relies upon will become applicable once the labour officer has decided to deal with the matter in terms of the amendment to the Labour Act.

The draft grounds of review contain a prayer that orders payment of a specified amount or that this court quantifies what is due to the applicant or further that this court remits the matter to another arbitrator. The applicant cannot dictate how the quantification proceedings will be dealt with. The judgment of 17 July 2014 stated how the quantification is to be done. That process should be followed to finality. The order of 17 July 2014 cannot be amended to include a quantification by this court. Once the court decided that quantification is to be done by an arbitrator, it became functus officio on that issue. I am therefore not persuaded that there are any prospects of success on review.

Consequently the application fails and the following order is appropriate:

The application for condonation of late filing of an application for review be and is hereby dismissed for lack of merit.

Matsikidze & Mucheche, respondent’s legal practitioners