Maxwell Kasema v Econet Wireless (Pvt) Ltd

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/113/24
HARARE 13 MARCH,2024
CASE NO. LC/H/492/23
AND 15 MARCH, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 13 MARCH,2024

AND 15 MARCH, 2024

In the matter between: -

JUDGMENT NO. LC/H/113/24 CASE NO. LC/H/492/23

MAXWELL KASEMA	Applicant

Versus

ECONET WIRELESS (PVT) LTD	Respondent

Before the Honourable L. Hove, Judge:

For applicant :	Mr. M. Ncube

For respondent:	Mr. P. T. Chakanyuka

This is an application for condonation for the late filing of an application for review.

The facts are common cause and are briefly that the application was employed by the respondent as a sales consultant. He was charged with acts of misconduct in terms of Section 4 (a) of the Labour (National Employment Code of Conduct) regulations, 2006 (SI 15/06) (National Code). It was alleged that on 29 August 2022 and 1st September 2022 the applicant had allegedly accessed a customer’s call data and shared same with the customer’s husband without getting permission from the customer. It was alleged further that on 29 August 2022, applicant had sent a WhatsApp message in a work group chat which caused unnecessary anxiety among members of staff.

The applicant had challenged the conduction of the misconduct proceedings in terms of the National code of conduct which objection was dismissed and on 20 September 2022 the applicant was found guilty and dismissed. The applicant appealed against the decision internally but was unsuccessful. He appealed to the National Employment Council for Communications and Allied Services Industry (NEC). The respondent challenged the proceedings before NEC and argued that it had no jurisdiction to deal with an appeal against a decision made in terms of the National code and that such appeal or review should lie to the Labour Court. The NEC ruled in favour of the applicant and respondent appealed to the Labour Court. The applicant later conceded that NEC had no jurisdiction. Applicant now seeks to bring an application for review before this Court. He realized that such application was out of time and seeks condonation for the late filing of the application for review.

The application for condonation

The applicant is seeking the indulgence of the Court so that he can file an application for review out of the 21 days allowed to file such applications in terms of the rules.

Factors to be considered in an application of this nature are agreed between the parties and include;

The extent of the delay

The reasons for non-compliance

The prospects of success on the merits should the application be granted, and

The balance of convenience and possible prejudice to the other side

See the case of Songore v Olivine Industries (Pvt) Limited 1988 (2) ZLR 210, and Malone v Santamn Insurance Co. ltd 1962 (4) SA 513 (A).

Prospects of success

The applicant in casu argues that his prospects of success are good in that the respondent failed to accord him procedural fairness. He argues that the respondent used the wrong code of conduct when it disciplined him in terms of the National Code instead of the Code of conduct for the National Employment Council for Communications and Allied Services Industry (NEC code of conduct).

The applicant argues on the basis of Section 2 (1) (a) of the Labour Act [chapter 28:01] (the Act) as read with Section 101 of the Act that the law provides that whenever there is a registered code of conduct in a particular industry, employers and employees are bound by its provisions regardless of them not having been parties to the NEC code. The NEC code would still apply to them. See the case of Chikomba Rural District Council v Pasipanodya 2012 (1) ZLR 577 (SC), in this case, the Supreme Court was clear that the National code can only apply where there is no code of conduct for the relevant industry. The Supreme Court went further to state that even if the parties agree to using the national code, that agreement would be against the law if there is a code of conduct for that work place or that industry.

The applicant further, argued that its prospects of success were very good because the upreme Court has in the case of Econet Wireless (Pvt) Ltd v Minister of Public Service Labour and Social Welfare and others SC 31/16 held that if Econet Wireless was of the view that the law, that is, Section (1)(a) and as read with Section 101 of the Act was unconstitutional, they cannot approach the Courts seeking to have the law declared unconstitutional when they have not first complied. They would be approaching the Court with dirty hands. They needed to comply with the law first.

After the Supreme Court decision in the Econet case (supra), a conscientious litigant would have taken that root and regularize its need to comply first and argue whether or not it can be compelled to associate against its will. Unless the respondent merely seeks to be contemptuous and disrespectful of the legal positions enunciated by the Supreme Court, it ought to have taken the decision of the Supreme Court in the Econet Wireless (Pvt) Ltd case (supra) as a cue to regularize its alleged constitutional rights by first complying with the law as it is and seek to argue its rights in terms of the constitution later. It cannot bring the same argument before the Labour Court when the Supreme Court has already pronounced itself on the exact same issues.

It is for the above reasons and also for the fact that as far as the law now stands, the respondent is obliged to use the NEC code and not the National code. I believe the respondent has an unassaible case on review. The applicant’s argument that there was procedural unfairness occasioned by the use of a wrong code holds, in my view, very good prospects of success.

the delay and the explanation thereof

The delay is 8 months. Under the circumstances of this case, the delay is not inordinate. The applicant demonstrated a clear desire to prosecute his case and what was not merely sitting on his laurels doing nothing. The applicant also struck me as one who exhibited a genuine desire to have the dispute between the respondent and himself adjudicated satisfactory.

The explanation given is however not reasonable. A diligent practitioner ought to have re assessed his client’s position when its appeal before NEC was challenged on the basis that an appeal from a decision made in terms of the National code is not appealable to the National Employment Council

but to the Labour Court. This position of law was clarified in the Misheck Mabeza v Sandvik Mining and anor SC 91/19 case and again in several other cases including the

Tafadzwam Sakarombe N.O. and anor v Montana Carswell Meats (Private) Limited SC 44/20.

The authorities were clear, I must agree with the respondent’s argument in this regard. The reason for the delay is simply tardiness on the part of the applicant’s legal practitioner.

In the case of Malone v Santamn Insurance Co. Ltd 1962 (4) SA 531 (A) the Court stated that;

“in dealing with whether sufficient cause has been shown, the basic principle is that the Court has discretion to be exercised judicially upon a consideration of all facts, and in essence it is a matter of fairness on both sides, among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case…”

The Court must reconsider all the facts including, balance of convenience; Balance of convenience

The Court has found that the delay under the circumstances was not inordinate but the reasons for the delay is not satisfactory. The Court has also found that the applicant enjoys good prospects of success. The interests of Justice weigh more in favour of granting the application.

Honourable Mafusire J in Zimba v Mining Commissioner and others HH 10/16 stated that;

“although the reason proffered by the applicant for non-compliance namely ignorance and indigence and for ordinate delay, namely a period of one year and one month were not satisfactory by themselves nonetheless I granted the application for condonation.

Furthermore, it seemed that the application for review had some merit.” Again, in Mahachi v Barclays Bank of Zimbabwe SC 6/06 the Court stated that;

“it is settled that where no acceptable explanation for non-compliance with the rules has been given an applicant for condonation must at least show very good prospects of success”

And again, in Anjin Investments (Private) Limited v The Minister of Mines and Mining Development and others SC 39/20 the Court stated that;

“I accept there was tardiness on the part of the applicant as argued by Mr Uriri but the prospects of success on appeal has titled the balance in favour of the applicant as observed by Chidyausiku J’ (as then was) in the case of Lovemore Sango vs Chairman of Public Service Commission and anor HH 28/96 at P 2 of the cyclostyled judgement;

‘in deciding whether to condone the delay or not two factors are of paramount importance. Firstly. The period of the delay and the reasons for such a delay. Secondly, the prospects of success on the merits.’”

In casu, the balance has been tilted in favour of the Court granting this application because though the delay has not been satisfactorily explained, the tardiness of applicant being rather extreme the applicant has managed to show that it enjoys good prospects of success.

Where the prospects of success are good, the interest of justice, fairness and equity demand that the applicant be condoned.

In the result, the following order is made:

Order:

The application for condonation be and is hereby granted.

The applicant be and is hereby ordered to file its application for review within ten days of the date of this order.