Richmark Zimbabwe (Pvt) LTD V Desire Derby Muzamba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/243/24
HARARE, 15th MAY, 2024
CASE NO LC/H/128/24
AND 6TH JUNE, 2024
RICHMARK ZIMBABWE (PVT) LTD
APPLICANT
AND
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 15th MAY, 2024

AND 6TH JUNE, 2024

RICHMARK ZIMBABWE (PVT) LTD

AND

DESIRE DERBY MUZAMBA

RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant    Mr T. Ndoro (Legal Practitioner)

For Respondent    Mr W. Kamusasa (Legal Practitioner)

CHIVIZHE, J:

The matter was placed before me as an application for condonation for late filing of an appeal against the determination of the Designated Agent of the National Employment Council for the Mining Industry which determination was handed down on the 18th of May 2023. The application is filed in terms of Rule 22(1) of the Labour Court Rules, 2017. It is opposed.

MATERIAL FACTS

The facts which appear to be common cause are that the Respondent was employed by the Applicant as a Production Clerk/Statistician as from 11 September 2022. His contract was terminated on 2 April 2023.

He lodged a claim of Unfair Dismissal with the NEC Designated Agent for the Mining Industry on 4 April, 2023. A hearing was convened on 27 April 2023 at which both parties were represented. The Respondents submissions through Counsel were that thereafter the parties were requested to file written submissions. The Respondent filed his written submissions. The Applicant did not file such written submissions. The Designated Agent then issued a determination on the 18th of May, 2023 in the following terms;

“[14] Wherefore, after careful analysis of the facts and law, the following determination is made;

1. That Applicant’s claim for unfair dismissal be and is hereby upheld.
2. That the Respondent is ordered to reinstate the Applicant to his former position with effect from the date of unfair dismissal without loss of salary and benefits or alternatively if reinstatement is no longer tenable, Respondent is to pay Applicant USD 14 663.06 being damages in lieu of reinstatement, gratuity and cash in lieu of reinstatement.”

THE LAW

The requirements for an application for condonation are laid out in a plethora of authorities. In Forestry Commission vs Moyo 1997(1) ZLR 254 (which has been referred to by the Respondent) they were set out as follows;

(a) That the delay involved was not inordinate, having regard to the circumstances
(b) That there is a reasonable explanation for the delay;
(c) That there are prospects of success should the application be granted.

See also Marick Trading (Pvt) Ltd vs Old Mutual Life Assurance Co (Pvt) Ltd & Anor HH 667/15 Kombayi vs Berkhout 1988(1) ZLR 53(SC)

APPLICATION OF THE LAW TO THE FACTS IN THIS MATTER

DELAY

The period of delay in this case is not contested. It is a cumulative period of 9 months i.e. from 18th May, 2023, the date of issuance of the award, to February 2024 when the present application was filed.

THE EXPLANATION

The explanation tendered has been challenged by the Respondent. The Applicant submits that the determination was not received at the given address. It was also received by some Chinese officers who do not understand English. They then stuck the document somewhere. The Applicant agrees that some of its officers in the Human Resources are
 Zimbabwean but were not present at the time when the determination was received. The Applicant contends that it only became aware of the determination when the Respondent approached the Magistrates Court to issue summons in a bid to execute the determination by the Designated Agent.

The Respondent in counter submits that the Applicant was indeed aware of the determination and its binding effect. Applicant however did not seek to challenge the determination only opting to do so when the matter had escalated to the execution process. The Respondent has urged the court to dismiss the contention that Applicants’ officials were Chinese who do not understand and speak English. A perusal of the record of proceedings by the court would show that the Applicant was represented at the hearing before the Designated Agent by officers in its Human Resources who are Zimbabwean and therefore speak and clearly understand English. There is therefore no reason why the Applicant did not seek the help of the particular officers to understand the contents of the determination by the Designated Agent and its implications. The Respondent contends that the present application is just a delaying tactic by the Applicant in order to avoid paying to Respondent what is due to him. The Respondent has urged the court to dismiss the submission.

The court’s finding on this point is that the explanation tendered by the Applicant is not convincing. It is hard to imagine that a corporate body that is operating a business would take 9 months in order to become aware of a critical document such as a tribunal/court determination following a hearing in which the entity clearly participated. There ought to be a point within the 9 months where the Applicant through its officials, should have asked themselves as to whatever happened to the proceedings before the Designated Agent. They could have even followed up with the Designated Agent for the determination. The explanation tendered is clearly not plausible.

PROSPECTS OF SUCCESS

It is a trite position at law that where the period of delay is inordinate and where the explanation tendered for the delay is also unsatisfactory, a litigant seeking condonation, must at the very least show that the desired appeal has very good prospects of success in order to succeed in the application. See Rinos Terera vs Lock and 3 others SC 93 of 2021 which is also referred to in Mahachi vs Barclays Bank of Zimbabwe SC 6/06. The intended appeal as reflected in the draft notice is based on the following grounds;


1. The Designated Agent erred grossly when handing down an award that sounds in United States Dollars without the option of payment in local currency in violation of the exchange regulations currently in force particularly **s (7)** of the **Exchange Control [Exclusive use of Zimbabwe Dollars for Domestic Transactions] Amendment Regulations, SI 185/2020**.

2. The Designated Agent erred grossly when awarding damages in lieu of reinstatement without hearing evidence from the parties on quantification of damages.

The Applicant’s first ground of appeal is said to be supported by the case of **Duncan Hiugh Cocksedge vs Central African Bulding Society HH-152-53** where Chinhamora J (retired) had occasion to comment as follows;

“At this juncture, it is important to realise that the judgement in **Zambezi Gas Zimbabwe (Pvt) Ltd and Anor SC 3/2020**, settled the law on the one United States Dollars to one RTGS dollar conversion. That judgement is exact. Thus the current position is that **Statutory Instrument 33 of 2019 and 142/2019** and the **Finance Act [No. 2] of 2019** govern the monetary regime in this country.”

The Applicant has also referred to **Chimbandi v Mabel Canvas SC 68/22** where Honourable Bhunu JA also clarified on the application of **Statutory Instrument 33/19**. He stated that where the debt, asset or liability arose after the effective date (being 22 February 2019) there can be use of a prevailing bank rate on the date of payment. The Applicant contends that as the debt/obligation in this case rose after the effective date, the Designated Agent was duty bound to order that the debt/obligation, could in the alternative, be disbursed on the basis of the applicable rate of exchange on the date of payment.

The Respondent on the other hand has submitted that the order by the Designated Agent is legal and valid. **Statutory Instrument 218 of 2023** as read within **Section (2a)** of the **Exchange Control Act [Cap 22:05]** allows for settlement of any transaction or payment for goods and services in foreign currency until 31 December 2030.

The parties, in oral submissions, argued strenuously on the intended first ground of appeal. The Applicant’s position is the Designated Agent committed a gross error of law in handing down an award that sounds in United States Dollars without the option of the award being payable in local currency. This was in clear violation of exchange regulations more particularly **Statutory Instrument 33/19** and **Statutory Instrument 142/19**. The Respondent’s position on the other hand is that the Designated Agent was perfectly capable of handing down an order sounding only in foreign currency in view of the background facts to the matter, more particularly, that the Respondent had been earning in United States dollars. The Respondent also relied on the provisions in **Statutory Instrument 218 of 2023** as read with **Section 20 of the Exchange Control Act [Cap 22:05]**. An alternative position was also taken by Counsel during the proceeding, that, even if the Designated Agent had erred in the manner as suggested by the Applicant it was still not a fatal error. The error he had committed in this case was to overlook to mention that the amount awarded in United States dollars could also be disbursed in local currency. In other words his order should have read that “The Respondent is ordered to pay Applicant USD 14,663.06 or the equivalent in ZWL based on the read that”

applicable rate of exchange on the date of payment.’

The role of the court in a condonation application such as this one is not to make a final determination on the issues intended to be raised on appeal. It is sufficient for an applicant to present what is an arguable case on the merits. The court is satisfied in this case given the arguments raised across the bar in regards the first intended ground of appeal this is a matter which ought to be ventilated on appeal, as to the correctness and legality of the award handed down by the Designated Agent which is sounding only in United States Dollars.

The second intended ground of appeal is equally an arguable issue. It is indeed the correct position at law that the quantification process, is by its nature evidentiary based, in other words there is need for evidence to be led in support of each claim placed before a tribunal/ court. The Applicant has aptly referred the court to **Erickson Mvududu v ARDA SC58/15** which happens to be a matter that was heard before me, before it went up on appeal to the Supreme Court. The Supreme Court in its decision as per **Patel JA** (as he then was) stated as follows;

“Although it is trite that damages need not to be quantified with the mathematical precision, there must be some evidentiary basis for calculating damages, even if they be punitive damages.”

The Respondent through Counsel, however, insists that the issue of evidence only arises where there is a dispute. In this case there was no dispute as the Applicant failed to file written submissions as requested by the Designated Agent. The figures and calculations provided by the Respondent were therefore not challenged. The Respondent has also placed reliance on the principle that an allegation of fact not specifically transversed is taken as admitted. The Respondent thus contends that the Designated Agent did not commit an error in this instance. It is clear that the parties have taken diametrically opposed positions on this point. As previously stated above the position of the law is clear that quantification proceedings, being evidentiary based, a tribunal/court is required to receive evidence to justify each claim as made before it. This applies even where the respondent party is in default. In conducting default proceedings the court/tribunal is still required to receive evidence from the claimant in support of each and every claim made. It is for this reason I believe that the Applicant has again raised an arguable point through the intended second ground of appeal. In view of this position the intended appeal has reasonable prospects of success. On this basis the application for condonation clearly must be allowed.

DISPOSITION

1. The application for condonation for late filing of an appeal be and is hereby granted.
2. The Applicant is directed to file its appeal within 10 (ten) days of the date of this order.
3. There is no order as to costs.
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