Hospital Transfer Systems (Pvt) Ltd v Tsitsi D Nyamufarira

### Preamble

IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT

NO LC/H/718/16

HELD AT HARARE 28 SEPTEMBER 2016

CASE NO

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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/718/16

HELD AT HARARE 28 SEPTEMBER 2016 CASE NO LC/H/APP/532/16

& 18 NOVEMBER 2016

In the matter between:

HOSPITAL TRANSFER SYSTEMS (PVT) LTD Applicant

And

TSITSI D NYAMUFARIRA Respondent

Before The Honourable Maxwell, J

For Applicant Ms T Takawira (Legal Practitioner)

For Respondent Ms M Chirimuuta (Legal Practitioner)

MAXWELL J:

This is an application for condonation of late filing of an appeal against an arbitral award. Applicant’s manager states in the founding affidavit that the award was handed down on 9 November 2015 but was not received by the applicant until 6 May 2016. He further states that an accountant had misplaced the award and only confessed at the beginning of May 2016. Applicant’s manager avers that there are good prospects of success and that the delay that will be occasioned by this application is minimal but necessary regard being had to the importance of the case.

Respondent opposed the application on the basis that applicant was served with the award on 9 November 2015 and that applicant’s manager signed for it. Respondent stated that the accountant for applicant had received subsequent correspondence after the manager had signed for the award which was delivered to applicant’s offices on 9 November 2015. The accountant received the letter dated 11 November 2015 on 13 November 2015. Respondent disputes that applicant became aware of the award in May 2016. Respondent also disputes that there are prospects of success to the appeal and avers that she will suffer prejudice if the application is granted.

It is trite that condonation is an indulgence which may be granted at the direction of the court. It is not a right obtainable on demand. The applicant must satisfy the court that there are compelling circumstances which would justify a finding in his favour. See Paul Gary Friendship v Cargo Carriers Ltd & Another SC 1/13. In the exercise of its discretion, the court considers inter alia.

the extent of the delay

the reasonableness of the explanation thereof

the prospects of success on appeal

the interest of the court in the finality of judgments and

the prejudice to the party who is unable to execute his judgment.

In casu I am not persuaded that applicant discharged the onus to convince me to

exercise discretion in its favour. If anything, there is an indication that applicant’s manager has not been candid with the court. A number of issues militate against applicant’s position. To begin with, even though applicant’s manager denies receiving the award on 9 November 2015, the copy of the award on record bears what respondent claims is his signature. It is trite that in civil proceedings proof is on a balance of probabilities. See Zesa v Dera 1998 (1) ZLR 506. Even though respondent specifically stated in the notice of response that applicant’s manager’s signature appears on the award dated 9 November 2015 counsel for applicant did not address that issue until probed by the court to provide a response to that allegation. The court finds on a balance of probabilities that applicant’s manager signed for the award on 9 November 2015. Having so found, there is no reasonable explanation as to why there was no action until 24 May 2016 when the application was filed.

Secondly, in paragraph 6 of the founding affidavit, the deponent states that applicant became aware of the award in or about March 2016 when he attended a quantification hearing which was scheduled before the arbitrator. Respondent stated in her response that applicant is fabricating then issue of attending quantification proceedings. An answering affidavit was filed on 8 July 2016 with a bold averment that quantification proceedings are pending. No proof to that effect was tendered. It is trite that he who alleges must prove. See University of Zimbabwe v Mutasa & Others SC 157/93. There is no explanation of why no attempt was made to get a copy of the award after attending the quantification hearing in March 2016. In paragraph 8 of the founding affidavit the deponent simply states that he travelled out of the country. No date of travel is given.

Thirdly, on prospects of success in paragraph 5.2 of the applicant’s heads of argument, there is reference to documentary proof furnished by applicant yet the award states that there were no written submissions from respondent despite several promises to do so. According to the award, the only document from respondent was the contract of employment that was emailed to the arbitrator without any comment. It is therefore not clear which documents the heads of argument are referring to.

Lastly, on the importance of the case in paragraph 6 of heads of argument, applicant disputes the amount awarded. That dispute should have been brought before the arbitrator. There is no record that that was done. It seems to me that applicant now intends to dispute respondent’s claim which it did not do a quo. That cannot be a sound basis for the court to extend an indulgence to applicant. I find no basis for exercising discretion in applicant’s favour. For that reason the following order is appropriate.

The application for condonation of late noting of appeal be and is hereby dismissed for lack of merit.

Mupanga Bhatasara Attorneys, applicant’s legal practitioners

Chirimuuta & Associates, respondent’s legal practitioners