Muhle Dube v National Pharmaceutic company

### Preamble
THE LABOUR COURT OF ZIMBABWE HARARE, 03 JULY, 2023
JUDGMENT NO. LC/H/291/23
CASE NO. LC/H/1197/22
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THE LABOUR COURT OF ZIMBABWE HARARE, 03 JULY, 2023

AND 03 OCTOBER, 2023

In the matter between:-

JUDGMENT NO. LC/H/291/23 CASE NO. LC/H/1197/22

Muhle Dube	Applicant

Versus

National Pharmaceutic company	Respondent

Before The Honourable L. Hove, Judge:

For Applicant	: Mr.E. Chigova For Respondent	: Mr.P.Nyeperai

HOVE J:

The matter initially came before the Labour Court for the confirmation of a draft ruling.

The Court dismissed that application on the basis that the applicant had exceeded his jurisdiction. He had decided the issue that had been referred to him and after that, he had created another issue and decided the case on the basis of that issue which was not properly before him. The Court found that it was irregular. As a result, the Court declined to confirm the draft ruling. This was in 2021.

Neither of the parties appealed against this decision of the Labour Court.

In his founding affidavit, the applicant gave a background to the current application. The applicant’s

background facts include this statement;

“it therefore follows that even the Court’s determination on the matter is also a nullity since

the decision flows from a nullity”

This was in relation to the judgement of the labour court. It is however, not for a litigant to declare an extant decision of the Court to be a nullity. If the applicant was of that view, he could have challenged the decision of the Court on appeal as prescribed by law. He did not. He is therefore bound by that judgement. The decision of the Court remains binding unless set aside by a competent court. The Labour Court is certainly not a competent Court for the purposes of setting aside Labour Court decisions.

The applicant, against this background, filed an applicant with the Court. The founding affidavit does not explain what the application sought to achieve. Be that as it may, that application was deemed abandoned in terms of Rule 46 (b) of the Labour Court Rules, 2017.

The applicant then filed the current application for condonation for him to seek reinstatement of his original application.

The application for condonation

The requirements for an application for condonation were dealt with in the case of Forestry Commission v Moyo 1997 (1) ZLR 254

The case stated that the considerations were;

That the delay involved was not inordinate

That there is a reasonable explanation for the delay having regard to the circumstances

That the prospects of success should be reasonable

The possible prejudice to the other party These will be considered ad seriatim

The delay involved and the explanation thereof

The delay is said to be 2 months by the applicant. This can however not be true because in the

applicant’s heads of arguments he speaks of a delay of 6 months as he was finding a buyer for his television. This was to raise money to mount the application. So, it cannot be true that the delay was for 2 months. The respondent disputes this and states that the delay was from 6 March 2022 to 29 December 2022. The respondent fails to elaborate on its submission in its heads of arguments. It appears the respondent is wearied by what it calls numerous and hopeless applications since the dispute between the parties started in 2016. The respondent omits the factual basis of its objection to the period. The Court therefore is left in the dark as to the extent of the delay.it must have been at least 6 months. It is inordinate for someone who was actively pursuing the case since 2016.

The explanation for the delay is that the applicant filed its heads outside the given period. He lay back expecting that the matter will be set down. For a litigant who has been litigating with the help of his capable trade union, the failure to comply with the rule is not acceptable. The rules have been in place since 2017. His ignorance or that of his representatives is unreasonable. In any event ignorance of the law is, in circumstances such as these, not acceptable as a reason for failure to comply with the rules. Applicant ought to have realized that he was out of time and sought condonation before just filing the heads out of time. This application was filed on 30 December 2022 and there is no explanation for all of the delays from when he became aware that he had failed to comply to the time that he actually sought condonation. The applicant failed to act expeditiously.

In T.Gova vs Zimabwe Mining and Smelting HC/B/1/98 the Court stated that if appears that the default was due to his negligence the Court should not come to his assistance. The applicant was negligent in not ensuring that his heads were filed within the prescribed period. All the periods of delay ought to have been explained. They were not, in the result, the explanation is found to be unacceptable. Lack of funds on its own is also not a reasonable explanation.

The prospects of success

This case is premised on a case that the Labour Court pronounced itself on in 2021. Judgment no. LC/H/43/2021. That decision has not been appealed against and remains extant. The applicant cannot assume on the basis of his representatives advise that the judgement is a legal nullity, if he believed so he could have challenged the decision or taken other steps to have it declared a nullity.

Nothing was done and the Labour Court Judgement remains extant and binding upon the parties.

The applicant cannot hope to have this, Court re-consider its Judgement. The prospects of success are therefore almost non-existent.

Prejudice to the other side

The granting of this application will prejudice the respondent who is having to defend itself against several applications.

The applicant has failed to establish the requirements for an application for condonation. Its application can therefore not succeed with no reasonable explanation for the delay and also without viable prospects of success

In the result, the application is hereby dismissed with costs.