Prisca Mabatsi and 29 Others v Kubi Private Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/170/2013
HARARE, 10 MAY 2013
CASE NO. LC/H/39/2011
JUDGMENT NO.LC/H/170/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/170/2013

HARARE, 10 MAY 2013				CASE NO. LC/H/39/2011

In the matter between

PRISCA MABATSI AND 29 OTHERS		-	Applicants

And

KUBI PRIVATE LIMITED			-	Respondent

Before The Honourable B.T. Chivizhe: President

For Applicants 	-	Mr J. Mangayi (Legal Practitioner)

Murisi and Asssociates

For Respondent	-	Ms F. Makarau (Legal Practitioner)

Kantor and Immerman

CHIVIZHE, B.T.:

This is an application for condonation of the late filing of an application for leave to appeal to the Supreme Court.  The judgment in the main matter was handed down on 17 August 2012.  The draft notice of appeal accompanied by the application for condonation for its late filing was filed with the court on 11 January, 2013.  The application for condonation is opposed.

The factors that the court ought to consider in an application of this nature are, the following;

The extent of delay

The reasonableness of the explanation of the delay

The prospects of success on appeal should the application be granted; and

The possible prejudice to the Respondent should the application be granted

The above factors have to be considered cumulatively.  Having applied the criteria outlined above to the facts in the present case the following are my findings;

Extent and reasons for delay

Applicants have submitted that the delay which is three and half months is not inordinate.  As for the explanation for the delay it was submitted on Applicants’ behalf that; they were not present when judgment was handed down.  Their Trade Union representative had attended.  The representative had however been unable to communicate with first Applicant, Mabatsi as he had lost his mobile telephone.  The Trade Unionist had only advised the first Applicant of the judgment on 13 November, 2012.  Because the Applicants are numbering 29 it was difficult to communicate with each and every one of them as they all reside in different geographical location.  Having received the judgment it took a considerable time for the Applicants to agree on the need for an appeal and then to get each Applicant to sign the supporting affidavit to the application.

The Applicants appear to blame their Trade Unionist for the delay in informing them of the judgment.  The Applicants however in my view cannot blame their Trade Unionist.  It was really up to each and every one of them to follow up with the Registrar of court on the status of their case.  It is also inconceivable to believe that the Trade Unionist failed to contact Mr Mabatsi (who had taken the role of the lead Applicant) as he had no mobile phone between July and November 2012.  The Applicants have also failed to explain why it would have taken them a further whole month after signing the supporting affidavits to file the same with court.  Whilst clearly the delay is not inordinate, it is difficult for the court to accept and understand the explanation tendered by the Applicant for the delay.  I am however prepared to overlook the unsatisfactory explanation for the delay in order to consider the prospects of success and possible prejudice to the Respondent.

Prospects of success

The Applicants have in the Draft Notice of appeal identified the main issues on which the appeal is based.  The appeal is being noted on the basis that this court erred in law in finding that the purported Works Council Resolution drawn up agreeing to measures to avoid retrenchment amounted to a special measure to avoid retrenchment in terms of Section 12D of the Labour Act; this also considering that Section 12D (2) subparagraphs (a) and (b) has provided statutarily for two measures that is short time and shift system.  It was Applicants’ contention that the Works Council Resolutions could never be ascribed as a special measure to avoid retrenchment in view of the fact that Applicant were indefinitely barred from work and were not being paid.

The Respondent does not agree with Applicants.  The Respondent’s position is that the findings by the Labour Court that; proper consultations were made before the Works Council resolution; that the measures taken pursuant to the Works Council resolution were special measures to avoid retrenchment were both findings of fact and therefore not appealable by virtue of Section 92F (1) of the Labour Act [Chapter 28:01].  Section 92 F (1) provides that an appeal to the Supreme Court from a Labour Court decision shall lie on a question of law.

Despite the valid arguments by the Respondent I believe that this matter should in the interest of justice be referred on appeal.  I am satisfied to the extent that the Applicants raise the issue as to whether the agreement reached by the Respondent and the Works Council can be categorized as a special measure to avoid retrenchment the Applicants are indeed raising a question of law which ought to be ventilated before the higher court.

On the question of prejudice no averments have been made as to what prejudice, if any, the Respondent would suffer should the present application be granted.

In the result the application is hereby granted with costs