Pardon Machocho v Econet Wireless (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/438/16
HELD AT HARARE 16 JUNE 2016
CASE NO
JUDGMENT NO LC/H/438/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/438/16

HELD AT HARARE 16 JUNE 2016				CASE NO LC/H/972/15

& 22 JULY 2016

In the matter between:

PARDON MACHOCHO						Applicant

And

ECONET WIRELESS (PVT) LTD						Respondent

Before The Honourable Kudya, J

For Applicant			T Chagudumba (Legal Practitioner)

For Respondent		T W Nyamakura & S Mubvuma (Legal Practitioners)

KUDYA J:

This is an application for leave to appeal to the Supreme Court at the instance of the applicant employee.  This application is made pursuant to this court’s judgment of 10 July 2015 where it confirmed the arbitrator’s decision where he had ruled that the applicant employee could not have his appeal dealt with out of time as the model code does not provide condonation provisions to be used in cases where a party seeks relief out of time.

The basis for the instant leave to appeal application is that this court erred on a point of law by agreeing with the arbitrator’s reasoning.  Applicant also argues that the timelines prescribed by section 8 of the model code should be read together with the prescription component in Section 94 of the Labour Act to found a basis for the labour officer and arbitrator’s entertainment of matters  out of time.

The application for leave is challenged by the respondent employer which maintains that there is no point of law which the applicant has made out which the Supreme Court can be called upon to determine.  In any event the same point sought to be argued has already been settled by the Supreme Court where it is an exercise in futility to seek to bring up the same issue on appeal.  In the result the respondent implored the court to dismiss the leave application with costs as it is devoid of merit.

The test for applications for leave to appeal is settled.  See cases of St Johns Educational Trust v Gardener SC-161-08.  Principally 2 issues have to be satisfied.  This is whether there is indeed a point of law worthy deliberating by the Supreme Court and whether the application is bona fide on the merits.  Each of the tenets addressed below.

Point of law

It is settled law that a point of law be brought up at any stage of the proceedings for as long as it would not prejudice the other party against whom it is made.   A reading of the facts of the case at stake would demonstrate that the argument about whether section 94 can be used to extend the powers of labour officers and arbitrators to hear matters out of time per section 8 of the model code is without doubt a point of law.  Being that as it may as correctly observed by the respondent the issue of whether a matter improperly before a tribunal can be attended to without purging the defeat thereof is settled by the case of UZ v Jirira SC-6-13.  It is clear from reading of that case that the Supreme Court has already taken a position on this issue and no meaningful purpose would be served by bringing the same issue up.  In any event it is potently clear from a plan reading of Section 8 of the model code and section 94 of the Act that the lawmaker never intended section 94 to found powers of a tribunal to entertain a case out of the prescribed time lines where the same law is clearly silent on the condonation powers of that body.  The court is therefore satisfied that there is no good point of law to found the referral of the matter to the Supreme Court for determination.

Bona fides and merits

A reading of the judgment by the Labour Court shows clearly why the court was of the view that the applicant’s case had no merit.  It is clear on facts of the matter that the law did not provide for the condonation powers vis labour tribunals and arbitration.  To that extent the court had no reason to fault the arbitral reasoning.  In the ultimate it is clear that the issues intended to be raised by the applicant are the very same ones discussed in the judgment.  The court is satisfied that the superior court is not likely to upset that position.  To that end there is no merited argument worthy of bringing up with the Supreme Court.  On account of this ruling the application should fail.

IT IS ORDERED THAT

Application for leave to appeal to Supreme Court being without merit it be and is hereby dismissed with costs.

Atherstone & Cook, applicant’s legal practitioners

Mtetwa & Nyambirai, respondent’s legal practitioners