Peace Security (Pvt) Ltd v Peace Moyo and 11 others & Anor

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LCH/286/24
HARARE 29 JANUARY ,2024
CASE NO. LC/H/757/23
AND 02 JULY, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 29 JANUARY ,2024

AND 02 JULY, 2024

In the matter between: -

JUDGMENT NO. LCH/286/24 CASE NO. LC/H/757/23

Peace Security (Pvt) Ltd	Applicant

And

Peace Moyo and 11 others	1st respondent And

Cremio Mabhauwa	2nd respondent

Before the Honourable L. Hove, Judge:

For Applicant :	Mr .T. Chinyan’anya For 2nd Respondent :	 Self actor

On 29 January 2024 I heard an application by the applicant. I issued an order dismissing the application. The applicant has requested the reasons for the order and the registrar also requested for reasons of my said order on 20 June 2024, these are the reasons.

The application was one seeking to reinstate case number LC/H/663/23.

The applicant was also seeking to file his heads of arguments within seven (7) days of the court’s order.

When the matter came up for hearing, Mr. Chinyan’anya moved the Court to grant condonation for the late filing of heads of arguments under case number LC/H/663/23. Once the court granted that condonation, and allowed the applicant to file its heads of arguments in case number LC/H/663/33, the matter would be reinstated.

He therefore advised the court that he was seeking for condemnation for the late filing of heads of arguments in case number LC/H/663/23.

Mr Chinyan’anya submitted that the Registrar of the Labour Court barred it from filing its heads of arguments on 25 September 2023 arguing that the dies indicia had expired. The applicant was of the view that the Registrar was wrong in barring them from filing its papers in response on 25 September 2023. A decision was therefore taken to proceed in terms of

Rule 36 of Labour Court rules. The rules provide that the matter, when abandoned, can be reinstated on application by a party made within twenty-one days of the party becoming a way of the abandonment.

The applicant did not state whether the Registrar had deemed the matter abandoned in terms of the rules. The applicant’s founding affidavit stated that the registrar indicated that she was then functus officio and the only remedy available was to proceed in terms of Rule 36. In support of the averment, the court was referred to annexure A. Annexure A did not support the averment. It is an email from mr Chinyan'anya to mr Mabhauwa dated 9 October 2023 . The email has its heading as ;

“Condonation for late filing of heads”

And it reads as follows;

“good day.

Find the attached. This is an application that we did to the Labour Court because they said we filed the heads out of time but the rules are very clear that if…”

The letter appears not to have been concluded because on the following page of the reconsolidated record, also labeled Annexure A the letter does not continue. There is no logical conclusion. There is mostly unrelated material attachment to this second Annexure A of the consolidated record.

As a result, the explanation for the failure to act in terms of the rules was not reasonable. It remains unclear whether the matter was abandoned. From the applicant’s founding affidavit, a bold unsupported allegation is made. It also remains unclear whether the applicant was seeking condonation for late filing of its heads or that it had in fact tried to file its heads and was barred by the registrar (wrongly; as they allege). The first annexure A is also dated 09 October 2023. However, the founding affidavit states that it was on the 25th of October 2023 that the applicant was allegedly barred by the registrar from filing its heads of arguments. It is clear that the explanation is not a truthful one.

The court found that the reasons for the delay; as averred remained unsubstantiated. Nothing was filed from the Registrar to show that indeed the applicant had tried to file the heads of arguments on the 25th of October 2023, which was the last day that the applicant was to file its heads of arguments, but was barred by the registrar.

The explanation was thus found to be unreasonable either for purposes of showing good cause or for explaining the failure to file the heads of arguments in time.

On the merits of the case, the applicant alleged that the respondent and his colleagues were employed on a fixed term contract. There was no legitimate expectation. Reliance for this proposition was placed on the case of UZ v Shamuyarira, no citation was given in the oral submissions and the case is not cited in the applicant’s heads. The court was thus not persuaded by the applicant’s unsubstantiated averments.

The facts of this matter differ from all the other cases on fixed term contracts that the Court has been referred to in that in all those cases the contracts had been terminated by effluxion of time. In casu however, when the contracts were terminated, the fixed period of the contracts had not expired.

The applicant also argued that the dismissal of the application for condonation would prejudice it and there should be finality to litigation. It was argued further that just one day had lapsed and the delay was not inordinate. The prospects of success were argued to be good and that the case was one free from predictable failure.

The applicant then argued through its representative that it had satisfied the conditions for an application for condonation, the application should therefore succeed in terms of the draft order.

The respondent submitted among other things that the matter in LC/H/663/23 was not abandoned and an application in terms of rule 36 of the Act was not appropriate.

They responded submitted on the merits that the contracts had been terminated in breach of paragraph two of the contract of employment. They argued that the contract did not expire. Termination was on 31 May 2023, but in terms of the contracts, the contracts would have remained valid until 31 July 2023. It was submitted that the applicant victimized the respondent and his colleagues as members of the Workers Committee.

There was also a provision in the contract of employment that the contract would be renewed if the client (United States Embassy) did not terminate its contract with the applicant. The contract between the applicant and the United States Embassy is still running and thus the terminations were unlawful.

Further and in any event new employees were employed in respondent’s stead and in the stead of his colleagues. The termination was therefore one that would give rise to a claim for wrongful dismissal because;

The contracts of employment though fixed, were not allowed to run their full course. They were terminated prematurely.

The provisions of section 12 B (3) (b) were breached because the termination of the contracts of fixed duration was done in a manner which breached section 12 B (3) (b) of the Act which provides as follows;

“An employee is deemed to have been unfairly dismissed-

…

If on termination of an employment contract of fixed duration, The employee

had a legitimate expectation of being re-engaged; and

another person was engaged instead of the employee”

The respondent submitted that he and his colleagues had a legitimate expectation because the parties had agreed that the contracts would be renewed if the contract between the United States Embassy and the applicant was not terminated and still running. It is still running and therefore the respondent, and his colleague’s expectation was legitimate, based on the agreement between the parties.

The applicant did not challenge this fact that termination of the contracts was tied to the time when the applicant’s contract with the embassy would have terminated. It was also not disputed that the said contract was still running.

Secondly, other persons had been engaged in the positions that the respondent and his colleagues had occupied.

In terms of section 12 B (3) (b) the respondent has very good prospects of success.

Further the fact that the contract of a fixed nature was not terminated by effluxion of time makes the respondents claim and those of his colleagues compelling. The respondent’s prospects of success are good.

The applicant’s explanation for its default is not an honest one. There was nothing to support that the application was ever abandoned by the registrar. The decision by the applicant’s lawyer to fail to motivate the application for reinstatement must have been borne out of the fact that they realized that applicant’s prospect of success would be nonexistent if they persisted with that line of argument and an application for reinstatement.

The unimaginative decision to motivate an application for condonation when what was before the court was an application for reinstatement could not take the applicant’s claim any further. The court was not seized with an application for condonation but with an application for reinstatement. The prayer that the application should succeed in terms of the draft order was also a defective prayer in view of the fact that the application which had been motivated was one of condonation and the prayer was that the application for reinstatement should succeed.

The application for condonation which the court was being moved to grant was not properly before the court. The application for reinstatement was, by the actions of the applicant of failing to motivate it before the court, abandoned.

In the result the court found that the application for condonation could not be granted because the reason for the delay was unreasonable and dishonest and the applicant’s prospects of success were poor. Further, and in any event, that the application for condonation was