Total Media (Pvt) LTD V Fortunate Chagwedera & ANOR

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/230/2016
HARARE, 19 JANUARY 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/230/2016

HARARE, 19 JANUARY 2015			      CASE NO. LC/H/APP/509/15

AND 13 MAY 2016

In the matter between:-

TOTAL MEDIA (PVT) LTD					Applicant

And

FORTUNATE CHAGWEDERA					1st Respondent

And

MUNYARADZI GWISAI (ARBITRATOR)			2nd Respondent

Before Honourable L. Hove, Judge

For Applicant	Ms N.R. Sai (Legal Practitioner)

1st  Respondent	Mr L. Matapura (Legal Practitioner) with Ms Ndawa

2nd Respondent	No appearance

HOVE, J:

This is an application for condonation of late noting of appeal.

The applicant does not admit that it is out of time.  It is submitted in its founding affidavit that they acted within the 21 days prescribed in terms of the rules of the Labour Court.

It was submitted that there is no clear date, as to when the Arbitral award was handed down.  The award indicates that it was handed down on 17 March 2015 but the applicant became aware of it on 27 March 2015.  It was further submitted that Rule 15 (1) as read with Rule 15 (3) of the Labour Court rules, 2006 entitles the applicant 21 days within which to file their appeal and they filed or attempted to file on 27 April 2015 which was the 21st day, after receiving the award and this was within the prescribed period and they were not out of time.

When a party has not acted outside the prescribed period and they are within the prescribed period, there is no reason to file an application for condonation of late noting of appeal and review.  Such applications are only when a party is out of time and are seeking to be condoned.

But the 1st respondent’s opposing affidavit clearly show that the appellant is not being truthful with the court as they were made aware by the respondent’s legal representative on the 18 March 2015 that the award had been handed down on 17 March 2015 and that it was ready for collection.  It was stated that when this phone call was made, the respondent’s legal representative was advised that Ms Nyaradzai Sai was the one handling the matter and was currently on maternity leave.  Mr Mdhara was handling the matter.  A message was thus left for Mr Mdhara to call and arrange a meeting with the respondent’s legal representative.  On 20 March 2015 the applicant’s lawyers phoned the respondent’s lawyers and requested that the award be sent to them.

From the above and the opposing affidavit it shows that the applicant was phoned on the 15th of March 2015 by the arbitrator and advised that the award would be handed down on 17 March 2015.  They chose not to attend the handing down.  But even if one were to give them the benefit of the doubt and accept that perhaps the arbitrator did not phone them, there is clear evidence that they were phoned by the respondent’s lawyer is the presence of the respondent and made aware that the award had been handed down and that it was ready for collection on 18 March 2015.

That position is further confirmed by the fact that on 20 March 2015 the applicant’s legal practitioners phoned the respondent’s legal practitioners requesting that the respondents lawyers sent their messenger with a copy of the award to them.  It was then that the respondent’s lawyers asked the applicant’s lawyers to send their own messenger to come and collect the award.  This shows that by 20 March 2015 the applicant’s lawyers were aware that the award was available and it was only through their negligence of their responsibilities that they failed to collect the award by the 18th March 2015 or by 20 March 2015.

By as early as 18 March the applicant’s legal practitioners knew of the existence of the award when they failed to respond or take any action, the respondent’s legal practitioners wrote formally on 27 March 2015.

The applicant’s therefore had knowledge of the existence of the award by 17 or 18 March 2015 but neglected to act upon that knowledge.  Their challenge to the award can only be from when they were expected to have had knowledge of the award and not from the date that the other side eventually decided to send them a copy because they had failed to act diligently and obtain a copy of the award as soon as they had knowledge of it.

Because of the applicant’s failure to be truthful with the court, it has failed to explain or to give a reasonable explanation as to why they were in default or why they failed to act within the prescribed time limits.

There is again no good prospects of success on the merits as a perusal of the award shows that the parties were in agreement to the issues before the arbitrator and the applicant through its lawyers offered 6 months’ salary.  This offer could not have been made if it was then clearly argued before the arbitrator that the issue of damages was res judicata.  The issue for determination by the arbitrator was as drafted in the certificate of no settlement and as confined by the parties during the pre-arbitration hearing that the issue was quantum of damages due to the respondent.

The court, in considering applications of this nature, has certain broad considerations which it takes into account.  In the case of du Preez v Hughes NO 1957 R & N 706 the Learned Judge has this to say:

“There are three broad considerations which the court will always take into account: first, the explanation given by the applicant for his default; second, the bona fides of the application made …, and third, the bona fides of the applicant’s defence on the merits of the case.”

The court here was dealing with an application for rescission but the same considerations are true for an application of condonation see the case of Willom Creek Farm (Private) Limited t/a William Transport v Deven Engineering HC 289/03 and also the case of Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (SC).

In casu I’m not persuaded that a reasonable explanation for the delay has been proffered.  Infact no explanation has been given.  The lack of an explanation shows that the applicant willfully failed to comply with the rules of court and or was recklessly negligent.  The applicant’s legal representative was aware of the existence of the award and the risks attendant upon their failing to avail themselves of the award and freely took the decision not to timeously avail itself of the award.

The courts have stated that were the breach of rules is flagrant, the court may refuse condonation irrespective of merits.  In the case of Grant v Plumbers P/L 1949 (2) SA 470 the Court stated that if it appears the default was due to his gross negligence the court should refuse to come to his assistance.  The fact that there is no explanation shows that the application is not bona fide and the court cannot come to the applicant’s assistance.

In this case however, the prospects of success are not very bright.

In the circumstances, the application for condonation must fail.  It is accordingly dismissed with costs.

Mundia & Mudhara, applicant’s legal practitioners

Dondo & Partners, respondent’s legal practitioners