Grace Nyevero Kanyemba v Edmos Mashumbwa N.O. and Masvingo Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MS/9/2020
HARARE, 18 MARCH 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/MS/9/2020

HARARE, 18 MARCH 2020		       CASE NO. LC/MS/CON/APP/24/19

AND 11 SEPTEMBER 2020

In the matter between:-

GRACE NYEVERO KANYEMBA				Applicant

And

EDMOS MASHUMBWA N.O.				1st Respondent

And

MASVINGO RURAL DISTRICT COUNCIL		2nd Respondent

Before Honourable B.T. Chivizhe, Judge

Applicant			In person

For 1st Respondent	Mr N. Dube

For 2nd Respondent	Mr K. Mabvuure (Legal Practitioner)

CHIVIZHE, J:

This is an application for condonation for non-compliance with the Rules of this court and for an extension of time within which to file and serve a notice of review in terms of the same Rules. The application is not opposed by the 1st Respondent but is opposed by the 2nd Respondent.

FACTUAL BACKGROUND

The Applicant was employed by the 2nd Respondent. On the 4th of April 2002 the Respondent before the Labour Relations Officer Mutsvangwa sought permission to terminate the service of the Applicant on the grounds of absenteeism. The application was dismissed and the Labour Officer directed Applicant reinstatement to her original position without loss of salary and benefits with effect from date of suspension. The 2nd Respondent being aggrieved noted an appeal to the Senior Labour Officer Mrs Musokera who on 5th of November 2002 upheld the decision by Ms Mutsvangwa, Labour Officer. She directed reinstatement or in the alternative payment of damages in lieu of reinstatement.

Pursuant to the determination by the Senior Labour Relations Officer Applicant then reported for duty. The 2nd Respondent however opted not to reinstate the Applicant. Through numerous correspondence (placed on record) from her Legal Representative Applicant requested for payment of arrear salarys and benefits to obviate her situation. When 2nd Respondent persisted in refusing to pay, the Applicant then reported a claim of unfair labour practice to Senior Labour Relations Officer. In her judgement handed down on 25th June, 2003 the Senior Labour Relations Officer instructed 2nd Respondent to either reinstate or alternatively pay damages. The Senior Labour Relations Officer thereafter ordered the Respondent to pay $ 1 399 707.33 to Applicant. The order was registered with the Magistrates Court. Following the attachment of its property by the Messenger of Court the 2nd Respondent paid the amount of ZW$ 1 399 707.33.

In 2018 which was seventeen years after the determination by the Senior Labour Relations Officer in 2003, the Applicant referred a claim of unfair labour practice to the Labour Officer. She was claiming that since the 2nd Respondent had not reinstated her following the judgement of the Senior Labour Relations Officer dated 5th November 2002 the 2nd Respondent had to pay her arrear salarys from July 2003 to the date of the referral of her claim. The claim was opposed by 2nd Respondent. At the hearing 2nd Respondent raised points in limine, firstly, that the claim was res judicata, secondly, that the Labour Officer was functus officio in the matter, and thirdly, that in any event the claim having been established in 2003 had already prescribed. The Senior Labour Relations Officer in her ruling found that the claim was indeed prescribed as it had been brought outside of two years after the cause of action had arisen in 2003. The Applicant was aggrieved by the Senior Labour Relations Officer’s ruling. She seeks to have reviewed by this court the same ruling. In view of the fact that the application has been bought outside of the prescribed period she has filed the present application for condonation.

APPLICATION FOR CONDONATION

The principles applicable in an application such as this one were settled in a plethora of cases including the case of Bessie Maheya vs Independent Africa Church SC 58/07. The Supreme Court stated therein as follows;

“in considering applications for condonation for non-compliance with its Rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are, the degree of non-compliance; the explanation therefore; the prospects of success on appeal; the importance of the case; the Respondent’s interests in the finality of the judgement; the convenience of the court and the avoidance of unnecessary delays in the administration of justice.”

It is also the position that the court has to consider all the requirements in an application of this nature. See Stuttafords Removals (Private) Limited vs Godfrey Nyamazunzu SC 40/20 where Bere JA stated as follows;

“The court a quo failed to determine the issues that were before it. It failed to make a determination on whether or not the Appellant had satisfied all the requirement for condonation. This was a serious misdirection that warrants interference by this court. This is case where a remittal of the matter to the court a quo for consideration of all the requirements for condonation to be done. These principles ought to be weighed one against the other before the application can be determined. This is so because the merit in one of the principles may help in compensating the weakness or lack of merit in the other laid down.”

EXPLANATION FOR THE DELAY AND REASONABLENESS OF THE EXPLANATION

The Labour Court Rules, 2017 in Rule 20(1) provides that “A person wishing to seek review of proceedings referred to in terms of the Act shall within 21 days from the date when the proceedings are concluded”

It is common cause the ruling by the Labour Officer was handed down on 10 April 2018. The application for review ought to have been filed within 21 days of that date. The application was however filed on 16th of May of, 2019, a period in excess of one year. There is no doubt that the period of delay is inordinate.

The explanation tendered by the Applicant is that she was sick. The Respondent is challenging Applicant on the basis that no proof has been attached to the application to prove the averment made that she was incapacitated during the period stated. It is trite position at law that one who avers bears the burden of proof. It is apparent that Applicant has not provided any proof of the averment made. Proof in the form of medical report or hospital bills would have been sufficient to prove the averment made. The Applicant having failed to tender the evidence the court must necessarily find against her on this point.

PROSPECTS OF SUCCESS IN THE INTENDED APPLICATION FOR REVIEW

The 2nd Respondent submitted that the intended application for review carries nil prospects of success. The 2nd Respondent has pointed to several defects in the application itself which include the following;

That the grounds of review do not conform to the grounds as laid in Section 92 EE of the Labour Act [Cap 28:01].

That the application does not comply with the prescribed Form LC 5 as outlined in Rule 21 of the Labour Court Rules in that no Founding Affidavit signed by the Applicant has been attached. Additionally there is no draft order attached to the intended application.

The grounds raised are grounds of appeal rather than for review as the Applicant refers to ‘errors of law’ having been committed by the Labour Officer.

The Applicant was being represented up to the stage where she was required to file Heads of Argument. She filed the heads of arguments as a self-actor. In her heads of argument she either overlooked or due to ignorance failed to address the technical points as raised by the Respondent.

The first basis for challenging the application is that the grounds for review do not conform to the grounds as laid in Section 92 EE of the Labour Act [Cap 28:01]. Section 92 EE provides as follows;

Subject to this Act and any other law the grounds on which any proceedings or decision conducted or made in connection with this Act may be bought on review before the Labour Court shall  be (my emphasis)

Absence of jurisdiction on the part of the Arbitrator or adjudicating authority concerned

Interest in the cause, bias, malice or corruption on the part of the Arbitrator or adjudicating authority concerned

Gross irregularity in the proceedings or the decision of the Arbitrator or adjudicating authority.

The Respondent submissions is as the grounds do not conform to the prescribed grounds the intended application is therefore void ab initio. In Olivine Industries (Private) Limited vs (1) NEC For Detergents, Edible Oils and Fats Industry and Anor SC 79/19, the Supreme Court had to determine the same issue as to whether a ground of review which is not premised on the grounds prescribed was properly before the Labour Court. The Supreme Court found as follows;

“The initial stance taken by the court a quo that the application was not premised on any of the grounds outlined in s 27 was, in my view, wrong.  Although the ground of review, as couched by the second respondent does not mention gross irregularity, a closer examination reveals that the second respondent was complaining about a gross irregularity in the decision of the NEC. The court a quo was correct in going beyond the form and looking at the substance of the ground for review. See Zimra v Mudzimuwaona SC 4/18 where, dealing with the substance of grounds of appeal raised, the following was stated;

“Regard must be had to the substance of the ground of appeal as opposed to its form in order to determine whether it raises a question of law. The court was of the view that the grounds of appeal raised by the appellant in essence attacked the alleged failure by the court a quo to consider relevant facts which failure led to an error at law.”

The Applicant’s intended grounds for review in the present matter are couched as follows;

The Labour Officer erred in determining that my matter had prescribed when the unfair labour practice was still continuing.

The Labour Officer erred in determining that the matter was functus officio when in fact the Labour Officer was required to quantify the damages.

It is apparent that the grounds for review do not make specific reference to any of the grounds as outlined in Section 92 EE of the Labour Act [Cap 28:01]. The court is however enjoined on the basis of the Olivine Industries matter referred to supra to look beyond the form to the substance. It was very clear from the Applicant oral submissions that the Applicant is complaining about a gross irregularity in the decision of the Labour Officer. Her complaint is the Labour Officer’s decision that the matter had prescribed was grossly irregular taking into account the factual circumstances in the matter and her submission that there was a continuing unfair labour practice. It is therefore clear that the first ground for review particularly may be a valid ground. The failure by Applicant to include the words “gross irregularity in the proceedings or decision“ would not render her first ground of review as defective.

It is however correct as submitted by Respondent that the intended application does not conform with Rule 21 of the Labour Court Rules in a material respect. Rule 21 (4) and (5) provides as follows;

“(4) Every written application, appeal or review shall contain a draft order sought.

(5) An Affidavit filed with an application, appeal or review

(a) Shall be signed by the Applicant.”

A perusal of the intended application shows that no affidavit signed by the Applicant has been filed with the application. Neither has a draft order been attached to the application. It has been the approach in several judgements of this court that the rules require that an application for review must be accompanied by an affidavit and must contain a draft order. Where the application filed does not contain both then the application is fatally defective and there is no valid application. It is also trite position at law that a nullity cannot be amended. The court was aptly referred by Respondent to Matanhire vs BP Shells SC 113/04.

The third ground of objection taken by 2nd Respondent is that the intended grounds are grounds of appeal rather than for review. This is in light of Applicant reference to ‘errors of law’ having been committed by the Labour Officer. My findings in respect of first ground of objection would still apply. The fact that Applicant referred to ‘errors of law’ and that she did not refer to ‘gross irregularity in the proceedings or decision’ would not ordinarily render the grounds as defective. See Zvokusekwa vs Bikita Rural District Council SC 44/15.

FINALITY TO LITIGATION

The 2nd Respondent has submitted that the Applicant has unnecessarily dragged it to court in different forums for a very long period in excess of seventeen years. The 2nd Respondent’s prayer is that the matter be finally put to rest in the interest of justice. The Respondent has therefore moved for the dismissal of the application. It is Court’s considered view that were the matter to be allowed to rest a travesty of justice may have been allowed to occur in this case. Although the matter may have taken a long time in the courts it would appear that the Applicant may have a genuine complaint. Although the 2nd Respondent contends that the amount paid of ZW$ 1 339 707.13 was for damages in lieu of reinstatement the Applicant papers as filed in the record will show that the amount paid covered arrear salaries and benefits due to her from November 2001 up to June 2003. As the record shows the Applicant was not reinstated by the 2nd Respondent up to the time of her referral of her claim of an unfair labour practice. She ought to therefore to have been paid damages in lieu of reinstatement. The order by the Senior Labour Relations was however clearly limited to the issue of arrear salaries and benefits and not damages in lieu of reinstatement. The Applicant clearly has an arguable case.

In view of the above observations the court could have been persuaded to grant the indulgence of condonation as sought. The Applicant however has failed to comply with the rules of the court in a material respect in that in her intended application she has not attached an Affidavit signed and a draft order. She has also failed to tender proof in support of her averment that she delayed in filing application as she was sick. The defects in her application are of such a nature that they go to the root of her intended application. The fact of her being a self-actor would not really alter the position. The Rules of the court simply have to be complied with.

In the circumstances the court hands down an order in the following terms;

The application be and is hereby struck off the roll with no order as to costs.

Chihambakwe Law Chambers, 2nd respondent’s legal practititoners