Peace MOYO AND 10 Others V Peace Security Company (Pvt) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/48/25
HELD AT HARARE 11 FEBRUARY 2025
CASE NO. LC/H/1303/24
AND 12 FEBRUARY 2025
---------


IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO LC/H/48/25

HELD AT HARARE 11 FEBRUARY 2025			CASE NO. LC/H/1303/24

AND 12 FEBRUARY 2025

IN THE MATTER BETWEEN:

PEACE MOYO AND 10 OTHERS					APPLICANTS

AND

PEACE SECURITY COMPANY (PVT) LTD			RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicants				Mr. E. Dondo

For Respondent				Mr. T. Chinyanganya

MURASI J.,

THE FACTS

This is an application for condonation of the late filing of an appeal. The matter has been hogged by various ‘stops and starts’ from inception. The Designated Agent for the Security Industry issued her determination on 31 July 2023. Applicants were supposed to file their appeal within 21 days, which they did. This was under Case Number LCH657/23. At the hearing of the matter on 12 February 2024 before Justice Kachambwa, the appeal was struck off the roll as it was deemed to be defective. An application for condonation of the appeal was filed under Case Number LCH209/24. This was granted by Justice Hove and Applicants were ordered to file the appeal within ten days of the Order. The appeal was filed under Case Number LCH 486/24. The appeal was withdrawn by the Applicants on 10 June 2024. Another application for condonation was filed under Case Number  LCH613/24 and was placed before Justice Kudya. This was struck off the roll as the relief sought was stated to have been granted by Justice Hove. This was on 22 July 2024. Another application for reinstatement under Case Number LCH941/24 was heard by Justice Kachambwa on 11 November 2024. This was also struck off on the date of the hearing. The present application is the sixth approach to this Court by the Applicants.

In submissions, Mr. Dondo stated that the history of the matter was well known. He referred to the facts of the matter which have been stated earlier in this judgment. He submitted that the main reason the Applicants were approaching the Court and failing to make headway was that they were self actors and were not well versed with the procedure. The other issue he stated was that most of the time was consumed by filing applications which were not successful and that there was no other explanation for the delay in filing the appeal.

On the prospects of success, Mr. Dondo submitted that matter could largely be answered mathematically. He argued that the figures that were contained in the contracts of employment and those that were reflected in the pay slips did not add up. He further argued that the Designated agent had not explained where she had obtained the other figures which stated were on the pay slips and not contained in the contract of employment. He referred to pages 23, 24 and 25 of the record. Mr. Dondo further submitted that the employment contracts did not have the word ‘basic’ pay and the Designated Agent  did not explain where she the information. He referred to the pay slip for the Second Applicant which was that the salary was supposed to be USD423-58. He argued that any allowances should therefore have been added to that figures and this is where the underpayment was generated. He prayed that the application be granted and Applicants be allowed to file their appeal.

In response, Mr. Chinyanganya stated he was abiding by the documents filed of record. He did not address the issue of the explanation tendered by the Applicants but dealt with the prospects of success. He submitted that what the Applicants were paid was what was contained and agreed to in the contracts of employment. He added that the Respondent had in fact made an error by adding a figure of United States Dollars and the one in local currency to produce a figure in United States Dollars. This was hotly disputed by Mr. Dondo who stated that these figures had come from the Designated Agent. Mr. Chinyanganya further stated that Statutory Instrument 76 of 2012 gave the salary of a General Security Guard, but the Respondent had paid figures well above the minimum wage. He urged the Court to dismiss the application as there were no prospects of success.

ANALYSIS

Herbstein and Van Winsen in The Civil Practice of the Supreme Court of South Africa 4th ed , set out the requirements in applications for condonation as follows:

“Condonation on non-=observance or rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance..

The Court’s power to grant relief should not be exercised arbitrarily and upon mere asking but proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant.”

In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion to be exercised judiciously upon consideration of all the facts, and in essence it is a matter of fairness to both sides in which the court will try to reach a conclusion that should be in the interests of justice. The factors usually taken into account by the court include the degree of non-compliance, the explanation for kit, the importance of the case, the respondent’s interests in the finality of the judgment, the convenience of the court and avoidance of unnecessary delay in the administration of justice.

The facts show that the initial appeal was struck off the roll for the reason that the prayer was defective and was unenforceable. This means that Applicants were made aware that the appeal needed to have the prayer amended to make it correct. The Applicants applied for condonation of the late filing of an appeal to this Court. This was granted by Justice Hove. Applicants went on to file another appeal. The Founding Affidavit reads:

“Thereafter, we filed an appeal under LCH 486/24. I will hasten to state that the appeal was defective in that it had affidavits attached to it. We withdrew the appeal.”

I have made the earlier observation that the earlier appeal had a defective prayer which needed to be corrected. It is not explained in the Founding Affidavit why it was now necessary to attach affidavits to the appeal. Another application for condonation was made under LCH 613/24 which was struck off the roll by Justice Kudya. What then follows is the interesting part. Applicants state that they proceeded to file an application for reinstatement under LCH 941/24. This was the reinstatement of the first appeal, which was LCH 657/23. It must be remembered that this was the appeal which had the defective prayer. The logic escapes me. Why would the Applicants proceed to apply at that stage the reinstatement of the appeal which had clearly been struck off the roll in 2023 and they had indeed applied for condonation of the late filing of an appeal which had been granted? This application for reinstatement was brought before Justice Kachambwa  who now was dealing the Applicants’ matter for the second time.  The Learned Judge, naturally, proceeded to strike it off the roll.

In my view, this was conducting business in a chaotic manner. Applicants were indeed bungling from pillar to post. Reasons why their matters were being struck off the roll were made known to them. They did not take into account what was stated in those cases. The delay was indeed the result of tardiness, incompetence and negligence. In paragraph 21 of the Founding Affidavit, it was averred that lack of means and legal advice were the cause of the delay. In many precedents, it has been held that a failure to act timeously due to financial constraints is not a reasonable and credible explanation. In any event, the facts in the present case show that it was Applicants’ blundering which was the cause of the delay and NOT financial constraints. It is my view that the explanation tendered is woefully deficient and is thus unacceptable.

In Kombayi v Berkhout 1988 (1) ZLR 53 (SC), it was held as follows:

“If the tardiness of a party in complying with such Rules is extreme, his application for condonation will be granted only upon showing good grounds for success of his appeal.”

Further, in Ndebele v Ncube 1992 (1) ZLR 288 (S), it was held at 290 C-E:

“It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But it must be observed that in recent years. Applications for rescission, for condonation, for leave to apply or appeal out of time. And for other relief arising out of delays either by the individual or his lawyer have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute. The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt- roughly translated, the law will help the vigilant but not the sluggard.”

The determination by the Designated Agent was based on the contract of employment. She had this to say:

“According to the principles of interpretation, when a dilemma arises out of something, the literal rule of interpretation looks at the intention of the legislature. In this case the intention of the author of the contract of employment by stating rate of pay meant your salary will be.. The contracts of employment were clear on terms and if claimants had doubts, the onus was on them to consult first before appending their signatures.

The claimants were putting their own words into existing contracts. The contracts had no such word as basic salary, to which claimants should have quizzed the respondent before contracting their services. The claimants also had the freedom to consult before signing the contracts. Parties to a contract agree on terms and conditions as provided and it would be naïve for someone to first agree and then seek to understand the terms later.”

The reference made by the Designated Agenet to the provisions of a contract of employment are really apt. Applicants did not seem to know what they had agreed to when they signed the contracts of employment. In Tindwa v ZB Bank Ltd 2019 (3) ZLR 280 (S), BHUNU JA had this to say at 285 E-H:

“The courts cannot extricate him from a liability voluntarily assumed.

The adage that the courts assist the vigilant and not the sluggard is apt. In Magodora v Care International Zimbabwe 2014 (1) ZLR 397 (S) this court had occasion to remark that:

‘It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Not is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms.’

The above remarks resonate well with the time honoured caveat subscriptor rule which cautions contracting parties to exercise extreme caution before putting pen to paper as signatories to contractual documents. Thus, a contracting party who blindly signs a document without subjecting it to scrutiny and satisfying himself that it accords with his intention and requirements does so at his own peril, as he is bound by his signature regardless of whether or not he has read and understood its contents.”

This is what the Designated Agent was stating in her determination. Applicants argue that the Designated Agenet was not supposed to take any figures outside what was provided in the contract of employment. The interpretation by the Applicants is that the amount stated in the contract was to be taken as the ‘basic salary’ and the other allowances were additional to the ‘basic’ salary. As observed by the Designated Agent, there is no reference to ‘basic’ salary in the contract of employment. The Designated Agent came to the conclusion that the amount paid to the Applicants in the pay slips was the amount agreed upon by the parties in terms of the contract of employment. Clearly, what the Applicants are attempting to do is to import ‘implied terms’ into the contract of employment. This was discouraged in the Magodora Case (supra).

It is trite that an appellate court can only interfere with the decision of a lower court or tribunal based on factual issues where there is evidence of a misdirection. For an appellant to avail himself/herself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection. Put differently, the determination must exhibit symptoms of irrationality. (See Sable Chemical Industries v David Peter Easterbrook 2010 (2) ZLR 342 (S)). It is my considered view that the facts show that Applicants were paid and received salaries as shown in their contracts of employment. These contracts of employment were voluntarily entered into. There is no reason to import any ‘implied terms ‘ in the contracts of employment as the true intention of parties must have been captured in the documents themselves. It is therefore my firm vie that the application is devoid of merit and ought to be dismissed. The following Order is appropriate.

The application for condonation of the late filing and extension of the period in which to file a Notice of Appeal, being devoid of merit, is hereby dismissed.

Applicants to meet Respondent’s costs, the one paying the other to be absolved.

Applicants shall institute any proceedings against the Respondent, in this Court, on the same cause of action without complying with paragraph 2 above or filing evidence of waiver from the Respondent for such non-compliance.

Messrs Saunyama | Dondo Legal Practitioners- 	Applicants’ legal practitioners

Madzivire Attorneys at Law-				Respondent’s legal practitioners.