Nelson Mutasa v Ecomed Pvt Ltd

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/295/24
HARARE 08 MAY, 2024
CASE NO. LC/H/191/24
AND 08 JULY, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 08 MAY, 2024

AND 08 JULY, 2024

In the matter between: -

JUDGMENT NO. LC/H/295/24 CASE NO. LC/H/191/24

Nelson Mutasa	Appellant

Versus

Ecomed Pvt Ltd	Respondent

Before the Honourable L. Hove, Judge:

For Appellant  :	Mr S.Ndoro

For Respondent :	Mr.S. Sadomba

This is an application for condonation for the late filing of an application for rescission of a default order and extension of time within which to file same.

The order being sought to be rescinded was issued on 16 February 2022.

Background

The applicant was charged with acts of misconduct in February 2008. The Honourable Moyamatshanga dealt with the matter and remitted same to allow for the exhaustion of domestic remedies.

The decision of the Labour Court was then appealed to the Supreme Court, but the appeal was withdrawn on 24 March 2011.

The applicant then appealed to the National Employment Council for Chemical Manufacturing which dismissed the appeal. This was in June 2018. The appeal was dismissed because the applicant was in default.

On 22 April 2022 applicant filed an application for rescission of the default order and the application was struck off the roll.

On 16 August 2022 an application by the applicant to have the matter reinstated was filed with the Court. This application was withdrawn by the applicant.

The applicant later sought to have the matter brought back to Court. When the matter was set down the applicant was in default and a default order was entered.

The applicant wishes to have the default order issued in February 2022 rescinded. By the time he seeks to do this in February 2024, he is out of time and hence the need to seek condonation.

The law

The law is clear that the requirements for an application of this nature to succeed are outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (S). These are;

The extent of the delay

The reasonableness of the explanation for the delay; and

The prospects of success See also the case of;

Jansen v Acavalos 1993 (1) ZLR 216.

It is also required that the Court, in assessing whether or not the requirements had been met it must look at them cumulatively.

In the case of Melane v Santam Insurance Co. Ltd 1962 (4) SA 531, the Supreme Court held,

“Ordinarily these facts are interrelated, they are not individually decisive, for that would be a piece meal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation.”

The Respondent’s position

The respondent opposes this application. It however confirms that the respondent’s appeal in LC/H/135/18 was dismissed in February 2022. An application for rescission was then filed in case number LC/H/335/22 on 22 April 2022. The application was struck off the roll for being fatally defective in July 2022.

The respondent confirms further that in August 2022 an application for reinstatement of the application for rescission of the default order was made under LC/H/733/22. This application was opposed. The applicant then filed a notice of withdrawal in September 2022. The Court confirmed the decision to withdraw in October 2022.

The matter did not proceed further until, on 18 March 2024, the matter was brought before the Court again. Because the file had been closed and archived the respondent filed its notice of response 4 days out of time. The respondent then indicated that they would be making an oral application for condonation for filing the notice of response 4 days out of time.

The delay

In explaining the delay, the applicant stated that the delay was approximately 22 months. The delay is admitted by the applicant to be long. It is therefore an inordinate delay.

Reasons for the delay and explanation thereof

The long delay is explained thus, and I quote verbatim;

“The period is admittedly long but there is a reasonable explanation for the delay. The failure to comply with the rules is down to the fact that attempts by the applicant to have the default judgment rescinded were faulted by the Court having raised by the respondent’s legal practitioners.

Furthermore, the delay was also aggravated by the fact that the trade union representative who was seized with the matter got critically ill and was admitted at Parirenyatwa Hospital for quite some time.”

In explaining the reasons for the delay, it is necessary for the party seeking condonation to fully explain the reasons for the delay in order for the Court to be in a proper position to assess whether or not the explanation is a good one. This explanation should cover the full length of the delay. Mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a Court in a proper position to assess the explanation for the delay.

The periods between the various Court orders and the withdrawals is not explained. The period when the trade Unionist was taken ill and got admitted to hospital is not stated.

The applicant ought to have taken the Court into his confidence in seeking its indulgence. The applicant fails to be specific in his application but just gives 2 blanket cover explanations for the entire 22 months.

The failure to take the Court into his confidence by providing a detailed explanation and the provision of necessary details in his explanation makes the explanation unreasonable. An inordinate delay cannot be reasonably explained by his own failure to file applications that are not fatally defective. His filing of defective applications cannot be a reasonable explanation for the delay.

In his founding affidavit, the applicant gave the explanation for the default as that, he had not been aware of the fact that the matter would be heard on the 7th of February 2022. He only became aware when the registrar of the Labour Court advised his representative that there was a default order.

Again, the applicant fails to take the Court into his confidence in explaining this delay. He does not say when it was that he wrote to the Court seeking a set down date, he does not say when it is the Court, informed him of the default order. He does not explain the period from him becoming aware of the default order to the time he approached the Court again. The Court is left handicapped in its endeavor to assess the reasonableness or otherwise of the explanation for delay. Under those circumstances, of the applicant keeping the Court in darkness, the Court cannot exercise its discretion properly. Since it is applicant who fails to take the Court into his confidence, his application cannot succeed.

The applicant’s case stands or falls on the basis of the founding affidavit. See Bramwell Bushu v Grain Marketing Board & 2 ors HH 326/17. The founding affidavit does not explain the delay adequately.

There is therefore no reasonable explanation for the delay.

Prospects of success

The applicant’s founding affidavit does not clearly explain the basis for his alleging that he has good prospects of success. Again, he fails to take the Court into his confidence and explan why his prospects of success are good in the main matter. The application will also either stand or fall on whether or not

he has a meritorious case in the main action. See Tilbet v Yeoman Products (Private) Limited SC 111/99, and Business Equipment Corporation v Baines Imaging Group SC 78/02.

The applicant was dismissed on 13 February 2008 and his first challenge of the dismissal was on 18 December 2010. A period which exceeds the prescriptive period. His appeal to the managing director was outside the two years. The relevant code of conduct provides that;

“an employee will have waived his/her rights of appeal against dismissal for serious misconduct if he has not appealed within five (5) working days to the employment council.”

Further, section 94 (1) of the Labour Act [chapter 28:01] also give a prescriptive period of 2 years. See Mukahlera v Clerk of Parliament and others 2005 (2) ZLR 365.

The application is in fact seeking to bring before the courts a matter that will fail because of prescription.

The applicant alleges that the respondent failed to comply with Justice Moya-matshanga’s directive that the applicant should exhaust domestic remedies. The applicant, in seeking to exhaust domestic remedies, applied for condonation to the managing director which was dismissed because the application was out of time. The applicant alleges that the managing director did not finalize the matter. The Act provides that one who is aggrieved by the failure to conclude the disciplinary process within the prescribed times should make an application in terms of Section 101(6) of the Act. He did not take advantage of this provision.

The Supreme Court has also stated that one cannot seek to avoid dismissal on the basis that the disciplinary proceedings were not conducted properly by another employee. He must escape the consequences of the misconduct by showing that he is innocent of those alleged acts of misconduct. The applicant has not taken the Court into his confidence and show that he is innocent of the allegations against him.

The applicant’s prospects of success are therefore poor on appeal.

If and when condoned, the applicant seeks to bring an appeal against the decision to dismiss him. One cannot appeal against the outcome of disciplinary proceedings that he would not have attended. It is a trite principle in our law that a party who fails to attend a hearing, does so at his own peril, and is precluded from later complaining about the outcome.

See Foschini Group v Maidi and ors (2010) 31 ILJ 1787 (LAC). This position by the South African Labour Court has also been held to be the position of law in Zimbabwe see Zvishavane v Ndlovu SC 40/06, and Redstar Wholesalers v Mutamba SC 142/04.

See also the cases of Reckit & Colman v CWIU & others (1991) 12 ILJ 806 (LAC), and Robert Dombodzvuku v CMED (Pvt)Ltd SC 31/12 where the Court said

“the appellants and their legal practitioners took a calculated risk that the matter would not proceed without them. worse still they left without responding to, or refuting the charges against them. they declined the opportunity to put forward their defenses… I find no fault in the Labour Court’s decision that the appellants waived their rights by walking out of the disciplinary proceedings.”

There is therefore no basis for the Court to exercise its discretion in favor of a matter that has no prospects of success.

The explanation for filing the notice of response 4 days late is a reasonable explanation and the delay is not inordinate, it is therefore granted. The notice of response is accordingly deemed to be properly before the Court.

Order:

The respondent-s application for condonation for the late filing of its notice of response being with merit, it be and is hereby granted.

The respondent’s notice of response and all its opposing papers are deemed to be properly before the court

The application for condonation for the late filing of an application for rescission, being without merit, it be and is hereby dismissed.