Goldstar Sugars V C Mazhindu & 16 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/532/16
HELD AT HARARE 13 JULY 2016
CASE NO
JUDGMENT NO LC/H/532/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/532/16

HELD AT HARARE 13 JULY 2016				CASE NO LC/H/APP/385/16

& 9 SEPTEMBER 2016

In the matter between:

GOLDSTAR SUGARS					Applicant

And

C MAZHINDU & 16 OTHERS				Respondents

Before The Honourable Hove, J

For Applicant			I T Chakawata (Legal Practitioner)

For Respondents		J Denhere (Trade Unionist)

HOVE J:

This is an application for condonation for late filing of an application for review of an arbitration award against the applicant.

The award being sought to be brought on review to the Labour Court was entered on 13 January 2016.

The award being sought to be brought on review was granted in default by the arbitrator.  The applicant has not sought to apply to the arbitrator to have it rescinded on showing good cause for its default.

It has sought to bring the matter on review before the Labour Court but they are out of time, hence this application for condonation.

The law in relation to applications for condonation is fairly settled.

The broad issues to be taken into consideration are the extent of the delay, the reasonableness of the explanation proferred for the delay and the prospects of success on review.

Grant v Plumbers P/L 1949 (2) SA 470 Mambo v National Railways & Anor HH 4/03 R v Humanikwa 1968 (2) RLR 42 Kumbirayi v Berkhaut 1988 (1) ZLR 93 Bishi v Sec for Education 1989 (2) ZLR 240.

The degree of non-compliance and the explanation thereof:

The award was in January 2016 and the application for condonation was filed in June 2016 a delay of about 5 months.

The reasons given for the delay is that the applicant’s Human Resources Manager had left employment and the award was served on a clerk who did nothing about it.  As a result nothing was done for a period of about 5 months from January to June 2016.

The reasons why the clerk did not act are not stated.  I am of the view that the degree of non-compliance under the circumstances of this matter is inordinate.  Further the reason for the delay is not reasonable.

The applicant after delaying in submitting its papers before the arbitrator, then filed the documents late.  The applicant then did not do anything to pursue this matter or to check the outcome of matter from October to June of the following year.  These circumstances show that the applicant did not take these proceedings seriously.  The applicant ought to have pursued the outcome to the matter with the arbitrator and not wait from October to June without finding out the outcome of the matter.  They acted negligently and they ought to have known of the decision as soon as the arbitrator gave its award.  If the applicant was genuinely interested in pursuing the matter, and they had good reasons and an explanation for their delay in filing the documents as per their agreement with the arbitrator, they could have applied for rescission and shown good cause for their delay but they have not done so.

The law will help the vigilant this is a well established principle of our law.  If a litigant choses to take a sluggish approach to the issue of protecting its rights, the law cannot protect him.  In the case of Ndebele v Ncube 1992 (1) ZLR 288 the court said it is a policy of law that there should be finality to litigation and that the law will help the vigilant but not the sluggard.

The clerk who received the award has not explained in an affidavit the circumstances that caused his inaction as a result, there is no explanation for the delay.

Where there is no explanation for the delay as is the case in casu, or where it appears that the default was due to gross negligence, also as in casu, the court should not come to a litigant’s assistance.  See Grant v Plumbers P/L (supra) and Anna Marange v Joseph Chiroodza SC 29/12.

There are no compelling grounds placed before the court to explain the delay and I am of the view that the circumstances of this case warrants a refusal to condone.

Further, the applicant has argued that it has good prospects of success on the merits because the arbitrator erred by failing to comply with the provisions of the Arbitration Act [Chapter 7:02] i.e. Article 25.

The court asked the applicant’s legal representative whether or not the proceedings were in terms of the Arbitration Act or in terms of the Labour Act or [Chapter 28:01] and the response was that he had no instructions as to whether or not the proceedings were in terms of the Arbitration Act.  In my opinion if you are intending to rely on the fact that your case has high prospects of success because the arbitrator failed to act in terms of a particular act, it is incumbent upon you to show that he was acting in terms of that act and was required to comply with its provisions.

In this case the applicant has failed to make those positive averments.  The court has not been shown that he had an obligation to comply with the provisions of that act.  In the result, the applicant has not been able to show that it has good prospects of success.

The application for condonation is therefore denied on the basis that the applicant had not given a reasonable explanation for its delay, and that it has not shown that it has good prospects of success on the merits.

Accordingly,

The application is dismissed with costs.

Coghlan, Welsh & Guest, applicant’s legal practitioners