Nazariyo Notice v Teecherz Furnishers (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/148/2020
HARARE, 10 JUNE 2020
CASE NO. LC/H/APP/669/19
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/H/148/2020

HARARE, 10 JUNE 2020 			CASENO.LC/H/APP/669/19

AND 03 JULY 2020

In the matter between:-

NAZARIYO NOTICE						Applicant

And

TEECHERZ FURNISHERS (PVT) LTD				Respondent

(IN CHAMBERS)

MURASI, J:

This matter was previously set down to be heard on 27 March 2020.  Due to the onslaught of the CORONAVIRUS, the Chief Justice issued instructions that in order to curtail infections, only very urgent matters were going to be entertained.  The applicant was contacted telephonically and informed of the position.  Applicant was also advised that the matter was going to be postponed to 10 June 2020.  It was also indicated to the applicant that if he was of the view that he did not need to make further submissions and was comfortable with the documents filed of record, the matter could be determined based on documents filed of record.  Applicant was agreeable to having the matter determined on the basis of the papers of filed of record.

Respondent’s legal practitioners were also conducted telephonically and one YVONNE was informed on the intention to postpone the matter.  The legal practitioner was unavailable and no decision could be made on whether to proceed to make the determination based on the papers filed of the record.  On 10 June 2020 MR T. CHAGUDUMBA appeared on behalf of the respondent.  He was informed of applicant’s position.  Mr Chagudumba was also agreeable to having the matter determined on the papers filed of record.

A background of this matter is necessary.

Applicant was charged in terms of the National Employment Council for the Commercial Sectors (NECCS) Code of Conduct.  He was found guilty and dismissed from employment.  Further internal appeals were also dismissed.  The matter ended in arbitration and the arbitrator upheld applicant’s dismissal whilst awarding applicant’s claim for overtime.  Applicant approached this Court for relief.  In a judgment dated 10 December 2014, MUCHAWA J, dismissed applicant’s appeal against the arbitral award.  After several years had passed, applicant filed an application for condonation of the late filing of an application for Leave to Appeal to the Supreme Court on 09 April 2018.  This matter was heard by MUCHAWA J.  In a judgment dated 02 November 2018, the Learned Judge dismissed the application.

Applicant has filed this further application which he has styled:

“CHAMBER APPLICATION FOR CONDONATION FOR LATE NOTING OF AN APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT “

The body of the application reads:

“..the Applicant hereby files an Application for condonation for the late filing of an Application for Leave to appeal against the decision of the Labour Court dismissing an application for leave to appeal to the Supreme Court”

In essence, applicant intends to approach the Supreme Court on appeal against the judgment of MUCHAWA J dated 02 November 2018.  This application was filed on 28 November 2019.   Rule 43 of the Labour Court Rules, 2017 provides:

“1) An application in terms of section 92F(2) of the Act seeking leave to appeal from any decision of the Court shall be made to the Judge of the Court who made the decision or in his or her absence from any other Judge within twenty-one days from the date of that decision.

2) An application in terms of this rule shall be accompanied by a draft of the intended Notice of Appeal is the Supreme Court.”

l note that respondent has raised  a preliminary point concerning the structure of the Form used by the appellant.  Respondent has pointed to the fact that the Form “requires the dies induciae to be stated” and that there is an omission in this case.  This is the defect pointed to by the respondent.  Whilst it is correct that the present Form may carry the defect, respondent has not stated whether it has suffered any prejudice as a result.  The Court, is so stating, is not condoning the non – compliance with the Rules, but in certain instances, where the other party is a self-actor, legal practitioners should not raise preliminary issues as a matter of course.  The Court will in the present circumstances condone the con-compliance as it has not caused any prejudice to the respondent.

Before proceeding with the merits of the application I wish to point out certain issues as regards the present application.  MUCHAWA J made certain findings in both judgments.  This Court will not and is not in a position to interfer with those findings.  This is so because those are findings made by this Court on the same subject matter.  There is one cause of action.  MUCHAWA J made pronouncements regarding her views on the explanation tendered by the applicant and the issue of prospects of success.  This Court should be regarded as functus officio as regards those pronouncements and determination.  This Court can only deal with the issue of the explanation tendered by the applicant as regards the period from 02 November 2018 to 28 November 2019.  I find comfort in this regard from the decision of MAKARAU JA in JACOB BETHEL CORPORATION V EMMANUEL CHIKUYA SC 48/19.  She had this to say at page 6 of the cyclorlyled judgment:

“Reliance for the argument advanced on behalf of the respondent was also sought from the decision in MATANHIRE VS BP SHELL MARKETING SERVICES SC 5/05 where this Court was faced with two conflicting decisions of the same court over the same issue.  In resolving the issue that was before it in that matter, this court applied the basic principle that once a matter has been finalised by a court, that court becomes functus and therefore loses authority and competence to adjudicate on the matter gain……

It follows that the Labour Court as an institution no matter how constituted could not pronounce on the issue again.”

A reading of the above binding precedent shows that findings made by MUCHAWA J in the two judgments cannot be re-visited.  This Court will therefore limit itself to the explanation advanced by the applicant as regards the condonation in the application in casu.

Applicant’s explanation is contained in the Founding Affidavit.  This is what he stated:

“2.6. The Applicant as a layman self-actor then filed to the Supreme Court an application for condonation for late noting of an application for leave to appeal instead of filing with the Labour Court, the application was then withdrawn for the applicant to re-align his papers with the proper court, hence the present application for condonation for late noting of an application for leave to appeal.

2.7. The Applicant’s delay in noting the present application is not deliberate as it is a result of circumstances beyond his control.

2.8 The Applicant is making this application with an abundance of caution.

2.9 The Applicant erroneously filed an application for condonation for late noting of application for leave to appeal with the Supreme Court instead of the Labour Court on the 7th day of October 2019 under case no SC/546/19 in which it was withdrawn on the 1st of November 2019, hence this present Application”

Respondent’s Counsel has argued that this falls far short of an explanation and that applicant is not serious about the proceedings.  Respondent avers that further events that this is an abuse of the court process.

A reading of applicant’s Founding Affidavit brings to the fore several issues.  The first is why did the applicant proceed to the Supreme Court for an application for condonation when the record and evidence shows that he had filed a previous application for condonation with this Court?  This is not explained in the Founding Affidavit.  The second is that, applicant states that the application filed at Supreme Court “was withdrawn “.  He does not state at whose instance the application was withdrawn.  Was it at as a result of “advice” given or at the instance of the Supreme Court?  There are gaps in the application as regards applicant’s approach to the Supreme Court.

The major yawning gap remains that of the period between the date of the judgment that is, 02 November 2018 and the date applicant filed the present application.  Applicant has remained mute about his actions or lack of them between November 2018 and October 2019.  I have already outlined the prescribed period in which applicant was required to file the application for leave to appeal to the Supreme Court.  It is to twenty-one days.  Applicant’s Founding Affidavit is silent on this aspect.  The Court remains uninformed about the period in question.  No explanation has been tendered.  The Court notes that applicant avers in paragraph 2.7 that this was the “result of circumstances beyond his control “.  Applicant has not explained on what these circumstances were.  The judgment was handed down on 02 November 2018 and the applicant only re-surfaces with a purported application for condonation on 07 October 2019 without explaining about his whereabouts for ten (10) months.

In KOMBAYI V BERKHOUT 1988 (1) ZRL 53 (5) it was stated thus:

“The broad principles the Court will follow in determining whether to condone the late noting of an appeal are the extend of the delay, the reasonableness of the explanation for the delay and the prospects of success.  If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for success of his appeal”

It is trite that in all instances of time limitation, whether statutory or in terms of the rules, the court has an inherent right to grant condonation when principles of justice demand it.  However this can only be done when the reasons for non-compliance with the time limits have been explained to the satisfaction of the court.  I have already made the observation of the apparent gaps in the explanation tendered by the applicant and indeed the absence of any explanation for the large period extending from November 2018 to October 2019.  In KODZWA V SECRETARY FOR HEALTH AND ANOTHER 1999 (1) ZLR 313 the late SANDURA JA had occasion to quote MULLER JA as follows:

“In a case such as the present, where there has been a flagrant breach of Rules of this Court in more than one respect, and where in addiction there is no acceptable explanation for some periods of delay and indeed, in respect of other periods of delay, no explanation at all, the explanation should, in my opinion, not be granted whatever the prospects of success may be”

I have made the observation that applicant does not explain why he chose the Supreme Court when his last application had been placed before this Court.  l have already stated that applicant has not tendered any explanation for the period from November 2018 to October 2019.  It is also trite that an applicant falls or stands on his or her founding papers.  I have elsewhere in this judgment stated that l would not delve into the merits as these had already been dealt with by MUCHAWA J.  I also endorse those findings.

I should make some comment on how applicant has been handling this matter.  It would appear that a finding may be made that these may amount to vexatious proceedings.  In general, a court may, in the exercise of its inherent jurisdiction stay proceedings were it is satisfied that their continuance will cause an injustice to the other party or that they amount to an abuse of the court process.  I will not proceed to make a finding on this score even though respondent urged the Court to view these proceedings in that light.

I will also not make an order as to costs as applicant was quick to accept that the matter could be determined on the papers filed of record.

In the result I find that the applicant has not tendered a reasonable and acceptable explanation.  The application ought to be dismissed.

The Court makes the following order.

The application for condonation of the late filing of an application for leave to appeal to the Supreme Court be and is hereby dismissed.

Each party to meet its own costs.

ATHERSTONE AND COOK 	-	Respondent‘s Legal practitioners.