Jackson Munyeza Pools & Construction (Pvt) Ltd v UNKNOWN

### Preamble
JUDGMENT NO. LC/H/36/16
IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE ON THE 12th JANUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE ON THE 12th JANUARY 2016           CASE NO. LC/H/APP/862/15

AND 22ND JANUARY, 2016

In the matter between:-

JACKSON MUNYEZA POOLS & CONSTRUCTION (PVT) LTD       -APPLICANT

The matter was heard before me as an application for condonation of late noting of an appeal against an arbitral award by the Honourable Madziya dated 18th of May 2015.

The material background facts to the matter are as follows;

The Respondent was employed by the Applicant as a credit controller in 2005. In 2006 he was promoted to the position of Sales and Maintenance Officer which was a managerial position. He was earning a net salary of US$ 600.00 and allowances. The Respondent referred a claim for arrear salaries, backpays from 2012 and benefits. The matter was eventually referred to an Arbitrator. The Arbitrator found the Applicant owed the Respondent the sum of US$ 20 350.00 in unpaid salaries and backpays. He thereafter directed the Applicant to pay the Respondent within 21 days from the date of receipt of the award.

The Applicant was aggrieved by the award. The Applicant intends to appeal against the award. Because however the appeal is to be filed out of time the Applicant then filed the present application for condonation of late noting of an appeal. The application is opposed by the Respondent.

On the date of the hearing the Respondent took two points in limine which it was submitted would dispose of the application without going into merits.

The first point taken was that the application was defective for two reasons. The first was that the Applicant had filed an application for condonation of late filing of an appeal instead of filing an application for extension of time within which to file an appeal. The second was that the Applicant had not attached the draft Notice of appeal. The court was therefore constrained to assess the Applicant’s prospects of success on appeal. The second point in limine was that the Applicant in seeking to appeal against an award granting arrear salaries and underpayments is not raising points of law instead the appeal is attacking factual findings made by the Arbitrator. It was Respondent submissions that on any of these points the court could dismiss the application with costs on a lighter scale.

I turn to address the points in limine

In regards the first point Ms Mawangu submitted that the application for condonation was improperly placed before the court. The court cannot condone the late noting of an appeal in circumstances where an appeal does not exist. The Applicant should instead have filed an application for extension of time within which to note an appeal in the time prescribed by the Labour Court Rules. The Respondent relied on the decision in Kadungure vs. Kadungwe SC 19/07 to support his position.

Mr Mthlongwa for the Applicant submitted that Applicant had filed papers as a self-actor. The Applicant believed that the papers at the time were properly filed. The Registrar having accepted the papers in their format Applicant believed that it had followed the correct procedure. It would not be fair in the circumstances to penalise the litigant and not the Registrar of court who had accepted the papers in their state. The court should therefore extend an indulgence to the Applicant for failure to comply with the Rules. In any event the Labour Court Rules do not require a party to file an application for extension of time within which to note an appeal. The case relied on by the Respondent emanating from the Supreme Court which has its own set of rules was therefore inappropriate. The proper procedure was to seek condonation through an application as had been done in this case.

I agree totally with the Applicant on this point. It is clear upon a perusal of the Labour Court Rules, 2006 that the rules do not specifically request a party to seek for extension of time within which to note an appeal instead of condonation. Section 26 of the Labour Court Rules, 2006 in particular provides that the court can during a matter condone a departure from one of its rules including an extension of any period specified therein. Section 26 reads as follows;

“At any time before or during the hearing of a matter a President or the Court may—

(a) 	direct, authorise or condone a departure from any of these rules, including an extension of any period specified therein, where the President or Court is satisfied that the departure is required in the interests of justice, fairness and equity;

(b) 	give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to the President of the Court to be just, expedient and equitable.”

Section 6 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 on the other had specifically provides that a judge may upon special circumstances been shown to him/her extend the time for noting an appeal. Section 6 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 reads;

“Save where it is expressly or by necessary implication prohibited by the enactment concerned, a judge may, if special circumstances are shown, extend the time laid down, whether by rule 5 or by the enactment concerned, for instituting an appeal.”

This necessarily implies that an application for extension of time has to be specifically made to a judge showing special circumstances before the judge can extend her/his indulgence and grant an order for extension of time within which to institute an appeal. In practice applications for condonation before the Supreme Court are conjoined with an application for extension of time within which to note an appeal. See for example Robert Dombodzvuku & Anor vs. CMED Private Limited SC 14/11. The case referred to by the Respondent emanating from the Supreme Court is thus clearly of no persuasive value. Applications for condonation before the Labour Court need to be accompanied by an application for extension of time within which to note an appeal.

The second procedural point taken is that the application is defective on the basis that the draft Notice of appeal and grounds of appeal are not attached. It is Respondent position that in the absence of the grounds of appeal the court is constrained to determine the point of prospects of success on appeal.

Mr Mthlongwa counter-submitted that there is no need to attach draft Notice of appeal in an application for condonation. The Applicant filed an application for condonation accompanied by his founding Affidavit as well as a draft order as a self-actor. When he then obtained legal representation counsel his had filed heads of arguments which clearly showed the grounds on which he intended to appeal against the arbitral award. In his Founding Affidavit Applicant had made averments to the effect that the factual findings made by the Arbitrator were grossly unreasonable as to amount to a point of law.  On that basis the point in limine should be dismissed.

The Respondent raises a valid point. The law governing applications for condonation of late noting of an appeal is settled. The factors which a court may take into account in deciding whether to condone a non-compliance with the Rules are generally;

That the delay involved was not inordinate, having regard to the circumstances of the case

That there is a reasonable explanation for the delay

That the prospects of success should the application be granted are good and

The possible prejudice to the other party should the application be granted.

See Director of Customs and Exercise vs. Hall 1990 (2) ZLR 354 (S).

It is clear that prospects of success are a crucial factor that the court must consider in addressing an application for condonation. It follows that a draft Notice of Appeal and the grounds of appeal have to necessarily be attached to an application for condonation. This is in order to enable the court to properly assess the prospects of success. It is especially so in an application for condonation where the intended appeal is against an arbitral award. Section 98 (10) of the Labour Act [Cap 28:01] specifically provides that only appeals on points of law can be referred to the Labour Court. In casu the appellant clearly failed to attach the draft Notice of Appeal and ground of appeal. It is not sufficient for appellant to make spurious allegations that there are prospects of success in the founding Affidavit. It is also improper to raise grounds of appeal in the heads of argument as submitted by the Applicant counsel.

In the circumstances the Applicant having failed to attach its Notice of appeal and grounds of appeal to its application, the application for condonation is fatally defective.

In the result I make the following order

The first point in limine is upheld.

The application for condonation is struck off with costs.

Matake & Makonese Attorneys, applicant’s legal practitioners

Munyaradzi Gwisai & Partners, respondent’s legal practitioners