Trust Me Security v Aswin Makonya & Judith Nyanzou

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/699/2016
HARARE, 13 SEPTEMBER 2016 &
CASE NO LC/H/210/2016
4 NOVEMBER 2016
---------


IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/699/2016

HARARE, 13 SEPTEMBER 2016 &			         CASE NO LC/H/210/2016

4 NOVEMBER 2016

In the matter between

TRUST ME SECURITY						APPELLANT

Versus

ASWIN MAKONYA						1ST RESPONDENT

And

JUDITH NYANZOU						2ND RESPONDENT

Before the Honourable Muzofa J

For the Appellant	C K Mutevhe (Legal Practitioner)

For the Respondent     A R Chizikani (Legal Practitioner)

MUZOFA J:

This is an appeal against the decision of an arbitrator, declining to grant condonation for the late noting of an application for rescission of judgment.

The background to this case illustrates an arduous path to assert one’s rights as a result of murky procedures.

In order to put this matter into perspective I have to set out the genesis of the case. The two respondents were employed by the appellant. They referred a dispute to a labour officer.

The issues were not resolved by conciliation and the matter was referred to arbitration. A hearing date was pencilled. The appellant did not appear. The arbitrator considered the respondents’ claim and issued an award.

The appellant approached this court on review. The court dismissed the application on the basis that the order by the arbitral tribunal was a default order.

In that case the appellant submitted that it had approached the arbitral tribunal to rescind its order. The tribunal declined on the basis that it had become functus officio. This it would seen was informal communication between the parties.

The application was not formally done so was the alleged response.

The appellant returned before the tribunal, this time applying for condonation of late filing of an application for rescission.

Non-compliance with the rules, is but one basis of an application for condonation. It is common cause that there are no rules applicable in arbitration proceedings. The question remains which rules the appellant failed to comply with in this regard?

This is not an issue for determination in this case.

The arbitral tribunal dismissed the application on the basis that there was no reasonable explanation for the delay. The tribunal also denied that it had initially declined to grant the application for rescission claiming to be functus officio.

The appellant then appealed to this court. The grounds of appeal raise issue that the arbitral tribunal failed to holistically take into consideration all the requirements of an application for condonation. It based its decision on one factor which was incorrectly perceived.

The appeal was opposed by the first respondent only. It was submitted that the tribunal did not err in basing its decision on one factor without considering the other factors.

The approach of the courts to applications for condonation is well settled. A detailed analysis of that approach is in the case of Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (SC) where at pages 315 -6 SANDURA JA had this to say:

“The factors which the court should consider in determining an application for condonation are clearly set out in Hebstein & Van Winsen’s The Civil Practice of the Supreme Court of South Africa 4th ed by Van Winsen, Cilliers and Loots at pp 897 – 898 as follows:

‘Condonation of the non-observance of the rules is by no means a mere formality … The court’s power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper  judicial discretion…

In the determination whether sufficient cause has been shown by the applicant, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the interests of justice. The factors usually weighed by the court in considering applications for condonation … include the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interests in the finality in his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.’”

It is therefore within a court’s discretion to grant condonation when the principles of justice and fair play demand it. It has been held that no one factor is decisive but the factors have to be considered cumulatively.

It is common cause that the tribunal in this case only considered the explanation for the delay. Having found that it was unreasonable the tribunal did not consider the rest of the factors.

Clearly the approach taken is contrary to the established criteria.

It was for the tribunal to consider the prospects of success, the extent of the delay together with the explanation.

In my view the explanation was reasonable in the circumstances. The uncontroverted position is that at the time this matter unfolded there was a reference to the case of Tapera & Ors v Field Spark Investments (Pvt) Ltd HH 102-13 where MATHONSI J noted that an arbitrator cannot reverse his own decision.

The appellant faced with the High Court decision approached the Labour Court. It is not like the appellant sat on its laurels, it did all it can to protect its interests.

The tribunal clearly fell into error.

I must comment on the prospects of success in the main matter wherein the respondents claimed certain amounts of money.

A perusal of the record of the tribunal does not indicate any evidence was produced. On that basis there are prospects of success.

The extent of the delay cannot be ably assessed for want of a proper reference as to which rules apply to determine the time lines.

The interests of justice and fair play require that the parties be heard on the merits. To that end the appeal should be granted.

Accordingly the appeal be and is hereby upheld.

The matter is referred to the same arbitrator to hear and determine on the application for rescission of judgment.

No order as to costs.

Muvingi & Mugadza, appellant’s legal practitioners

A R Chizikani, 1st respondent’s legal practitioners