Tawanda Chimhamhiwa v South Eastern College

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/MS/13 /2021
HARARE, 27 JANUARY 2021
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/MS/13 /2021

HARARE, 27 JANUARY 2021			CASE NO. LC/MS/APP/19/20

AND 26 MARCH 2020

In the matter between:

TAWANDA CHIMHAMHIWA					APPLICANT

versus

SOUTH EASTERN COLLEGE 					RESPONDENT

Before The Honourable Kachambwa J

For Applicant 		R Chavi	(Legal Practitioner)

For Respondent	- 	R.T. Mutero   (Legal Practitioner)

KACHAMBWA J:

This is an application for condonation of late noting of an appeal.  The facts are that the applicant was charged and found guilty of acts of misconduct.  He was charged in terms of the National Employment Code of Conduct S.I. 15/2006.  He was found guilty.  His appeal at the workplace failed.  The respondent advised him that if he was not in agreement with the outcome he could take his matter to a labour officer.  He did so.  Thereafter the labour officer made his draft ruling and applied to have it confirmed by the Labour Court.  The application for confirmation was struck off as the labour officer did not have jurisdiction to hear a matter that had been finalized at the workplace in terms of the relevant regulations.  Such a matter is the subject of appeal to the Labour Court hence the present application.

That the applicant had taken a wrong procedure in referring his case to the labour officer was brought to his attention in the notice of opposition to the application for confirmation. The respondent cited the case of Mabeza vs Sandrick Mining and Another SC91/19.  The case is very clear that a matter that has been finalized at the workplace should be appealed to the Labour Court and not referred to a labour officer.  However, the applicant waited for an order of the court before applying for condonation for late noting of appeal.  One wonders whether he could competently apply for condonation before the matter was finalized in the application for confirmation.  It should be borne in mind that the application for confirmation was by the labour officer and not the present applicant.  An application for condonation would have been a parallel application.

The applicant’s supporting affidavit only raised three factors for consideration in the application – extend of delay, reasons thereof and prospects of success in the intended appeal.  However, there are seven factors that can be raised although usually five are raised.  In the heads of argument he listed six and left out extent of delay though he addressed it without listing it before in the founding affidavit.  Normally this is not allowed.  An application stands or falls by its founding affidavit.

The respondent opposed the application and raised a prethora of preliminary points.  The parties latter agreed to abandon these technical points.  It is fair to mention that the manner in which the application was compiled leaves a lot to be desired.  The respondent was correct to point out that the applicant was not serious.  He was not serious on the technical issues.  It is of not much consequence to argue that labour matters are not to be decided on technicalities.  The present technicalities are to be avoided.  We applaud the respondent for allowing the matter to proceed on the merits despite those technicalities.

The application remained opposed on the grounds that-

The delay was long more than a year.  It also did not account for the delay between 10th June 2020 and 16th July 2020 the date of the order struking off the application for confirmation and the date of the application for condonation.

There are no prospects of success in the in intended appeal.

The applicant admitted that the delay of over a year could be said to be long.  However he pointed out that longer delays had been condoned.  He also said that condonation was consistent with the equity of the Labour Court as seen in both the Labour Act Chapter 28:11 and the court’s rules.

On the explanation for the delay the applicant pointed out that there was no flagrant disregard of the rules as the applicant had followed a practice that was commonly being followed till the recent judgement of the Supreme Court.  The judgement came when the matter was already at the wrong place.  The respondent was the one who advised the applicant that the next stage would be to refer the matter to a labour officer.  On the importance of the case the applicant pointed out that on one hand his livelihood was at stake while on the other hand the respondent wanted closure as to be able to plan the appointment of a new principal if at all.

On the possibility of prejudice to the respondent the applicant did not see any.  Rather, he saw some good coming out of the granting of condonation as the matter would be determined on its merits in line with the ideals of the Labour law.

The applicant considered that he had good prospects of success.  He referred to the draft notice of appeal.  Some of the grounds given for the prospects of success are review grounds though – the production of evidence.  The penalty was also challenged.  At the end of the day he said that what he needed to show is an arguable case on appeal in order to be condoned.

The respondent pointed out that the applicant should have explained the delay between 10th June 2020 and 16th July 2020.  That delay is indeed not explained.  It was argued that the applicant was not serious and his case must fail with punitive costs.

Respondent insisted that the applicant should have withdrawn the application for confirmation of the labour officer’s draft ruling once the respondent filed its notice of opposition on the 17th March 2020 wherein it brought the applicant’s attention to the case of Misheck Mabeza vs Sandvik Mining and Another Supra.  However the applicant at that time was the labour officer.  The present applicant was also a respondent.

On the prospects of success the respondent did not see any.  This is particularly so in view of what the respondent sees as admissions to some of the charges.  The respondent referred to a South African case to argue that the applicant need more than an arguable case to succeed.  There was no explanation though as to why the South African case should be followed against a clear local case to the contrary.  Even that South African case seems to speak in double speak. (The member of the Executive Council: Health and Social Development Gauteng Province vs Mthimkuluabo [2018] ZAGPJHC 405:)

The respondent prayed that higher costs – be awarded against the applicant as he had filed a frivolous and mala fide application just to frustrate the respondent.  The applicant was said to have taken an unfortunate and unreasonable stance since the notice of opposition to the application for confirmation of the draft ruling by the labour officer.  The notice of response of 17th March 2020 should have been the beginning of an about turn and yet the applicant waited till July 16th.

It is our law that an application for condonation must not be delayed.  It is also our law that that application is at the discretion of the court.  The discretion must be applied   reasonably in consideration of all the factors cumulatively.  In respect of the intended ultimate Court action the applicant has to show an arguable case, Per Garwe JA in Champion Constructors vs Modrak Mkandla and Another SC18/07

“The applicant’s case appears to be arguable.  I am not required at this stage to make a definite finding on the prospects of success.  This is for the appeal court.  As stated in Susan Chipo Vera vs Mitsui and Another Supra –

“The applicant deserves her day in court regardless of the merits of the case

In all the circumstances the application must succeed”

How the considerations in the applications weigh against each other depends on the facts of each case.  In general the prospects of success tends to rank higher than the rest.  However there are times when the application fails despite high prospects of success.  Such could happen for instance where there is intolerable fragrant disregard for some rule or the other.  No one factor always rules the day. In United Plant Hire (Pvt) Ltd vs Hills and Others 1976 (1) 5A 717 (A) at 720F – G the court stated the principles as follows –

“It is well established that, in considering applications for condonation, the Court has a discretion, to be exercised judiciously upon consideration of all the facts; and that in essence it is a question of fairness to both sides.  In this enquiry, relevant considerations may include the degree of non-compliance with the Rules, the explanation thereof, the prospects of success……….(on the merits), the importance of the case, the respondent’s interest in the finality of his judgment, and the avoidance of unnecessary delay in the administration of justice. These factors are not individually decisive but are interrelated and must be weighed one against the other; thus a slight delay and good explanation may help compensate for prospects of success which are not strong”

It is established in this jurisdiction that the Labour Court is a court of equity.  Thus in its search for justice it goes the extra mile unlike in other courts.  In other words it is in a situation to do more justice between the parties because of this equity.

Now, coming to the case beforehand we will equally look at all the factors raised and discussed by the parties

DELAY – EXTENT THEREOF - There is a cumulative delay of over a year.  There are also unexplained delays of March 2020 to July 2020 and June 10th 2020 to July 16th 2020 when the application for condonation was filed.  Applicant admitted that a delay of over a year can be said to be long but pointed out that there have been longer delays also deserved to be condoned.  Indeed the delay is not itself alarming.  We have to look at the other factors.

The shorter delays were not explained.  However one will notice that the application for confirmation was by the labour officer.  The present application had no authority to withdraw that application in order to start the present application.  He could only have conceded the lack of jurisdiction raised by the respondent.  That could have quickened the process.  Thus applicant can be blamed for not doing so.

The delay between the order by this court and this application is just about a month.  In terms of processing court does not agree that such a delay can be called into question.

EXPLANATION FOR THE DELAY

The major delay was partly caused by both parties.  The respondent advised the applicant that the next level was the labour officer.  The applicant followed the advice.  That was unfortunate.  It was further unfortunate that the applicant did not withdraw his case before the labour officer.  That could have reduced the delay.  However there is no doubt that the applicant has always wanted to have his matter heard outside the workplace.  Respondent was also aware of that.  Thus while the explanation for the delay is rather poor it is acceptable or understandable.

IMPORTANCE OF THE CASE

The applicant only addressed this point in terms of importance to the parties.  Of course it is always important to an employee that his livelihood be restored and it is important for the employer that a matter be resolved expeditiously.  However these factors include jurisprudential importance if such is there and importance to a sector or community.  The case may be important to educational institutions in the way heads/ principles use resources.  Parties did not address on this aspect and it remains a moot point.  It is not to be considered.

PREJUDICE TO THE RESPONDENT

Applicant said that there is no prejudice.  Respondent did not address on the factor.  However there is always financial prejudice in prolonged litigation.  There is also prejudice in the operations at the school where a position may not have a substantive person-in –charge.  Hence the need for finality to litigation.  Legal fees can be ameliorated by an award of costs.

PROSPECTS OF SUCCESS

The court is of the view that there are charges that appear admitted and therefore difficult if not impossible to upset.  However there are also other charges that the applicant seem to have an arguable case.  Further the issue of a penalty remains arguable in the circumstances.  Therefore from this angle it is equitable that everything else being equal the applicant could be allowed to appeal.

The parties neither addressed on the convenience to the court nor the delay in the administration of justice.  While it is not convenience to the court to have the same parties coming before it on the same matter this case is understandable.  This is more so when it is accepted that there has been errors in allowing parties to refer their cases to labour officers when they were supposed to appeal directly to the Labour Court.  As for the delay in the administration of justice it is better at this stage to let the parties appear or appeal on the main case than to otherwise prolong the case by the possibility of further appeals.  The merits route is quicker for both parties.

CONCLUSION The balance of the arguments seems to favour allowing the application for condonation.  As it was observed that the parties contributed to the delay with the applicant contributing more it is equitable that each party bears its costs.

Order

It is accordingly ordered as follows

the application for condonation of late noting of appeal for an extension of time within which to file the appeal be and is hereby granted.

the applicant be and is hereby granted 15 days from  this order to file the notice of appeal.

each party shall bear its own costs.