Pulse Medical Care (Pvt) Ltd v Tinaapi Nyawo & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/131/25
HELD AT HARARE 24 MARCH 2025
CASE NO. LC/H/138/25
IN THE MATTER BETWEEN:
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/131/25

HELD AT HARARE 24 MARCH 2025			CASE NO. LC/H/138/25

IN THE MATTER BETWEEN:

PULSE MEDICAL CARE (PVT) LTD			APPLICANT

AND

TINAAPI NYAWO						FIRST RESPONDENT

SARAH MUDIMU N.O.					SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant				Mr. A.K. Maguchu

For First Respondent			Ms. H. Madzongwe

No Appearance for Second Respondent.

MURASI J.,

This is an application for condonation of the late filing of an application for review and extension of time within which to file an application for review.

FACTUAL BACKGROUND

The first respondent was employed by the applicant as a Finance Director from the 1st of October 2008. He was later promoted to the position of Managing Director effective the 1st of March 2017. He was appointed the Group Finance Director on the 6th of October 2023 on the condition that he would only attend to assignments pertaining to Pulse Pharmaceuticals (Pvt) Ltd. Sometime in October 2023, a dispute arose between the parties, particularly in that the first respondent had set up a rival company, 5950 (Private) Limited, in the same business as that of the applicant. It was alleged that the respondent was using his position of employment to channel success into his own business. Pursuant to this, the contract of employment between the parties was terminated. The applicant claims to have verbally dismissed the first respondent, while the first respondent counters that he resigned. The first respondent thereafter approached the Labour Office on the 10th of October 2023 to register a complaint for conciliation. The conciliation process before the Labour Officer yielded no fruit and as a result, a Certificate of No Settlement was issued. The matter was subsequently referred for compulsory arbitration. An arbitral award was issued on the 30th of December 2024. The applicant was dissatisfied with the decision and filed an application for review. However, the application was withdrawn upon the realization that the wrong arbitral award had been attached by the applicant’s legal practitioner. Hence the present application.

SUBMISSIONS BY THE PARTIES

Applicant’s Submissions

Mr. Maguchu, for Applicant stated that he was going to largely abide by the documents filed of record. As far as the explanation for the delay was concerned, he submitted that the Court was dealing with a legal practitioner who was aware of the need to attach the correct arbitral award to the documents. He added that two arbitral awards existed which were from the same arbitrator and between the same parties. He further submitted that it turned out that what was attached was the wrong arbitral award. He argued that the legal practitioner was seeking to do the right thing. Mr. Maguchu submitted that indeed there was some negligence in the actions of the legal practitioner, but the question was whether it the sort of negligence which could not be pardoned. He stated that this was some form of negligence which could be pardoned. Mr. Maguchu further submitted that the period of the delay was some few days and requested that the Court condones the Applicant for such non-compliance.

In respect of the prospects of success, Mr. Maguchu submitted that during the arbitral proceedings, Applicant had requested the Second Respondent not to deal with the issue of quantum of damages until the liability issue had been resolved. It was argued that Second Respondent had agreed to this procedure. Mr. Maguchu stated that Applicant was surprised to then receive an arbitral award which showed that quantification had been determined by the Second Respondent in the absence of oral submissions as earlier agreed upon by the parties and the Second Respondent. He added that there was no specific denial of these events by the First Respondent. It was further argued on behalf of the Applicant that proceeding in such a manner was clearly wrong on the part of the Second Respondent. Mr. Maguchu referred to precedent cited in the Applicant’s heads of argument in this regard. It was also contended that in submissions made before the Second Respondent, First Respondent had averred that he had been verbally dismissed before handing over his letter of resignation. He stated that these were triable issues. A further point that was raised was to the effect that Second Respondent had made the averments that Applicant had not ‘resisted’ some of the allegations made by the First Respondent when in fact this was not correct and, in this regard, the Second Respondent had grossly erred.

First Respondent’s Submissions

In response, Ms. Madzongwe stated that she was going to abide by the documents filed of record. She stated that the present proceedings were anchored on the Notice of Response which had been filed in Case Number 58/25 on 6 February 2025. She went on to add that Applicant had subsequently filed a Notice of Withdrawal on 18 February 2025. She stated that Applicant had not explained why the withdrawal had not taken place on 6 February 2025 when the Notice of Response brought to Applicant’s attention the nature of the error. As far as the Supporting Affidavit was concerned, Ms. Madzongwe stated that Applicant’s legal practitioner had not applied reasonable care and due diligence in handling the matter and this could not be classified as a reasonable explanation.

Ms. Madzongwe further submitted that there were no prospects of success in the circumstances. She added that the Second Respondent had found that Applicant was liable for constructively dismissing the First Respondent and that the latter was entitled to damages. She argued that the Second Respondent had used the documents submitted by the parties to quantify the damages due to the First Respondent. Asked by the Court whether Second Respondent had announced during the hearing that she was not going to deal with the issue of quantum of damages, Ms. Madzongwe stated that she would not proffer an answer but simply abide by the documents filed of record.

ANALYSIS

The considerations in an application for condonation are well-established in precedent. When a party fails to adhere to the Court’s rules, it is imperative that they demonstrate good cause for such non-compliance. This entails placing the Court in their confidence by providing cogent, reasonable and acceptable explanations for the delay. It is trite that condonation should not be granted for the mere asking.

In the case of Lunat v Patel SC 142-21 at 5, the requirements for an application of this nature were succinctly set out as follows:

“The extent of the delay

The reasonableness of the explanation for the delay

The prospects of success on appeal;

Respondent’s interest in the finality of the judgment in his/her/its favour

Convenience of the Court; and

Avoidance of unnecessary delay in the administration of justice”

(See also. Forestry Commission v Moyo 1997 (1) ZLR 254 (S) and Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S))

Further, in Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 131G-J, HOEXTER JA stated the following

“In applications of this sort, the prospects of success are in general an important, although not decisive, consideration. It has been pointed out in Finbro Furnishers (Pty) Ltd v Registrar of deeds, Bloemfontein & Ors 1985 (4) SA 773 (A) at 789C, that the Court is bound to make an assessment of the petitioner’s prospects of success as one of the factors relevant to the exercise of the Court’s discretion unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration…”

What is clear from the authorities is that the consideration of an application of this nature ought to be cumulative. In that spirit, I will first turn to the extent of the delay and the explanation proffered thereof.

Extent of delay and the Explanation thereof

In the present matter, the application for review ought to have been filed on the 30th of January 2025. The record shows that it was filed about 7 days out of time. It is the applicant’s position that this delay cannot be deemed inordinate in the circumstances. A supporting affidavit, which appears on page 7 of the consolidated record, has been attached to the application to substantiate this stance.

According to the legal practitioner’s supporting affidavit, the initial application for review was filed timeously, but was withdrawn upon the realization that an incorrect arbitral award had been attached. This was after receiving the Notice of Response filed by the First Respondent. The legal practitioner takes responsibility for the mistake, attributing it to her genuine belief that she only had one award (The award of the 30th of December 2024) on her computer as a soft copy. To determine whether the reason proffered in this regard is reasonable and acceptable, it is pertinent to evaluate whether the legal practitioner exhibited due care and diligence in the handling of the matter. Due care and diligence require a legal practitioner to take reasonable steps to ensure that their actions are prudent, careful, and free from negligence.

In the case of The Combined Service Organizations Trust v Carruthers and Anor SC 114-23 at p.5, BHUNU JA made the following pertinent remarks:

“I cannot overemphasize the need for legal practitioners to exercise due diligence in handling their client’s affairs. While Courts may punish litigants for the sins of their lawyers, this weighs heavily on the court’s conscience to punish the innocent litigant…”

In this case, the legal practitioner’s error, although attributed to a genuine belief, raises concerns about her level of due care and diligence. While it is undeniable that mistakes are an inherent part of human experience, it is equally true that legal practitioners are held to a more exacting standard. The attachment of the incorrect arbitral award suggests a lack of attention to detail and a failure to exercise due care in handling the applicant’s matter. However, I am prepared to look the other way and condone her lack of diligence in the present matter.

Prospects of success

As far as prospects of success are concerned, the Court must consider whether the applicant has a viable case for review, which would warrant indulging the delay. This entails examining the merits of the application, including the grounds for review, the supporting evidence, and the relevant legal principles.

The applicant’s prospective grounds for review appear on page 13 of the consolidated record. The first two prospective grounds raise similar arguments. The core of these arguments is that the arbitrator grossly misdirected himself by proceeding to quantify damages due to the first respondent, without affording the applicant an opportunity to make submissions on the subject. It is the applicant’s position that as a result, there was a miscarriage of justice and a violation of the audi alterum partem rule.

In Minister of Ebrahim v Pittman NO 1995 (1) ZLR 176 H at 187H-188 D, it was held as follows:

“It is not competent for a Court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or inadequate factual basis, for an assessment, and it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment could have been made.”

The record shows that the applicant did not make submissions on the quantum of the damages. The arbitrator proceeded to compute the quantum relying on the first respondent’s evidence. This, in my view, raises an arguable case on review as the audi alterum partem rule was potentially violated. It is not surprising that Ms. Madzongwe found it difficult to make any submissions on the point even after the Court had pressed on her to take a stance. All she could say was that there were submissions made by Applicant which were filed before the Second Respondent. However, she made the concession that Applicant had not made any oral submissions on the quantum of damages before the Second Respondent. It has been reiterated in numerous case authorities that the consideration of prospects of success does not necessarily confer upon the Court the mandate of making a conclusive decision on the intended application or appeal but simply warrants an investigation on whether or not an arguable case has been presented. See Smith v S 2012 (1) SACR 567 (SCA). In casu, it is trite that a Court cannot pluck figures out of thin air with respect to the quantification of damages. What this entails is that both parties, as a matter of necessity, ought to be invited to make extensive submissions on the quantum. Evidently, this did not happen in the present matter. This makes the arbitrator’s decision subject to a review as it presents a glaring infraction of the principles of natural justice, particularly, the audi alterum partem rule. The applicant has demonstrated prospects of success in this instance.

The third ground for review raises the argument that the arbitrator erred and misdirected himself in finding that the first respondent was constructively dismissed when, in fact, the respondent had made an admission that he was verbally dismissed from employment. In deciding whether or not this ground holds prospects of success, I find it pertinent to quote the following excerpt:

“…On the 10th of October 2023, the respondent (Applicant in this case) placed him on mandatory leave. Being followed by a verbal dismissal by the respondent'’ Group CEO on the 13th of October 2023…”

While it is not my mandate at this stage to decide on the review, I find it pertinent to note that, contrary to the arbitrator’s finding, there was a dispute as to who had terminated the contract of employment. In the above quotation, it is recorded that there was a verbal dismissal prior to the tendering of the notice of resignation. This portion on its own, in my view, presents an arguable case in the intended review. The application has merit.

Mr. Maguchu quite correctly stated that Applicant would not be seeking an order for costs as the error was entirely Applicant’s. It is, in my view, a correct stance to take.

The Court makes the following Order.

The application is hereby granted.

Applicant is hereby ordered to file the application for review within ten (10) days of the date of this Order.

Each party to meet its own costs.

Maguchu & Muchada-			Applicant’s legal practitioners

Matsikidze Attorneys-at-Law-		First Respondent’s legal practitioners