Trust Me Security v Kefasi Kasemeya & 13 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/428/2014
HARARE, 13 MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/428/2014

HARARE, 13 MAY 2014 &			    CASE NO LC/CON/H/49/2014

18 JULY 2014

In the matter between:

TRUST ME SECURITY						APPLICANT

Versus

KEFASI KASEMEYA 						1st RESPONDENT

and

LINDI DHLIWAYO						2nd RESPONDENT

and

MATHABELA TSHABABA						3rd RESPONDENT

and

THOKOZILE MPOFU						4th RESPONDENT

and

SHEPHERD MUHOVO						5th RESPONDENT

and

ROSE MUNGANDAIRE						6th RESPONDENT

and

ALICE MUTOMBO							7th RESPONDENT

and

SARAH MUPARO							8th RESPONDENT

and

WILFILDA RUPIYA						9th RESPONDENT

and

SHEILA MASUKU							10th RESPONDENT

and

PRECIOUS FASHA							11th RESPONDENT

and

ROSEMARY GOCHERA						12th RESPONDENT

and

ROSEMARY ZONGORORO					13th RESPONDENT

and

MARITA MPOFU							14th RESPONDENT

Before The Honourable B T Chivizhe	:	Judge

For the Applicant		N B Manyani	(Legal Practitioner)

For the Respondents	K Guteni 		(Trade Unionist)

CHIVIZHE J:

The matter was placed before me purportedly as an application for condonation of late noting of an appeal.

After perusing the record and upon an enquiry with the applicant’s legal practitioner, it became apparent that the applicant was actually seeking condonation for the late filing of an appeal co-joined with an application for review – a two in one approach. Apart from that the court’s enquiry also established that the two i.e. the appeal and the application for review relate to two different arbitral awards – a principal award and a quantification award issued pursuant to the first. This however was not immediately apparent from the applicant’s papers. Needless to point out there is need for legal practitioner to be specific when filing and serving papers as to what it is being challenged and what it is the court is being asked to determine. Whilst the Labour Court Rules do allow for an appeal co-joined with an application for review however under Rule 15 (3) litigants need to ensure that the notice of review is served with the notice of appeal. This is for the convenience of the court as the court will be required to dispose of both at the same time.

To turn back to the application the principles that guide the court in an application for condonation are well established. They include:

The extent of the delay.

The explanation therefore.

The prospects of success in the merits. (case authorities).

I shall proceed to address these factors in relation to the application before me.

In terms of the Labour Court Rules, a party seeking to note an appeal to the Labour Court must do so within 21 days from the date on which the party received its determination or decision sought to be appealed against (Rule 15 of the Labour Court Rules). The applicant in this case alleges that he was not served with a copy of the quantification award. The applicant counsel deliberately refrained from addressing the principal award. Upon the court’s enquiry however it was counsel’s submission that the applicant was not aware of even the principal award which was granted in 2012. The applicant so it was submitted only became aware through an application for registration of the quantification award lodged in the High Court which application was filed and served on the applicant on the 1st April 2014. The delay was therefore according to applicant of one year. The respondent did not agree with the applicant. The respondents’ submission was the applicant was aware of the principal award handed down in 2012 and the consequent quantification award. The applicant had been served with notices for both hearings but had failed to attend the proceedings resulting in default proceedings. The respondents filed with their opposing papers documents in proof that the applicant was indeed aware of both proceedings before the arbitrator.

Condonation for the non-observance of the Rules of Court is not a mere formality. The court has to be satisfied there was sufficient cause to excuse non-compliance. In this case I am not satisfied that the applicant has discharged the onus on it. It is apparent from the record of proceedings the applicant was indeed aware of the initial proceedings before the arbitrator.  Annexture ‘A’ produced by the respondent clearly shows that the notification to attend proceedings was served and signed for by someone in the HR Department. The court cannot accept the argument that because there is no accompanying full names of the signatory and a stamp the court should disregard the evidence. This is because the applicant counsel failed before this court to disprove the assertion by the respondents that the signatory to the notification is the same person who signed the respondents’ papers in the chamber application before the High Court in April 2014. The applicant again failed to disprove the submissions by the respondents that their erstwhile legal practitioner of the record, Chirenje & Partners had through a filing before the arbitrator (copy tendered) indicated the applicant were indeed aware of the principal award. In those submissions which were made in respect of the quantification proceedings the applicant clearly showed it was aware of the principal award and also of the set down of the quantification hearing.

It is clear that the applicant were indeed served with notification to attend the initial hearing before the arbitrator but failed to attend proceedings resulting in a default judgment. The applicant clearly should have been aware that an award pursuant to these proceedings had been issued. The quantification award also clearly shows that the arbitrator proceeded to determine the matter in default after the applicant failed to appear having been duly notified of proceedings.

In any event the applicant again failed to disprove the submissions by the respondents that their erstwhile legal practitioner of the record, Chirenje & Partners had through a filing before the arbitrator (copy tendered) indicated the applicant were indeed aware of the principal award. In these submissions which were made in respect of the quantification proceedings the applicant clearly showed it was aware of the principal award and also of the quantification award pursuant to their award.

The present application would ordinarily amount to an abuse of court process. This is because it is clear the applicant was and became aware of both proceedings before the arbitrator but failed to act. The principal award was granted on 2 March 2012 The quantification award was then handed down on 12 February 2013 The applicant has not tendered an explanation as to why it did not act for the one year period in seeking to have the principal award rescinded or to appeal against the award. The applicant waited for a year. When the quantification was held again in its absence the applicant took another year to file the present application for condonation of late filing of an appeal and application for review. The cumulative period of delay therefore is, contrary to the applicant’s submission on paper, actually two years which is inordinate. The applicant is clearly in breach of the rules of this court and no reasonable explanation has been tendered. The present application ordinarily would clearly stand to be dismissed whatever the prospects of success. See P E Business Transport Workers Committee & Ors v Piet Business Transport (Pty) Ltd 1980 (4) SA 794.

The only compelling reason for the court to grant the application however is the issue of prospects of success on appeal. The arbitrator appears to have committed a fundamental error of law in the quantification award which behoves that these proceedings be set aside. Had it not been for that, the court was inclined to dismiss the application for condonation of late filing of an appeal/review whatever the prospects of success.

The principal award handed down on 2 March 2012 directed the applicant to pay the respondent’s terminal benefits, quantification of unpaid wages, cash in lieu of leave days and terminal benefits. The respondents were however on fixed term contracts which had expired by effluxion of time at the time the matter went before the arbitration. The principal order does not order reinstatement, or in the alternative payment of damages for unlawful termination. The issue that was before the arbitrator was for unpaid wages. The arbitrator appears to have exceeded his powers to an extent that the award may be unenforceable. He travelled beyond his terms of reference in the principal award which were to address the issue of unpaid wages the respondents having been employed on the basis of fixed term contracts which had clearly expired at the time they went before the arbitrator. It was therefore improper for the arbitrator to then in quantification award order payment of back pays, notice pay, gratuity, leave days, etc, which are terminal benefits normally awarded following an unlawful termination.

There was also no accompanying explanation from the arbitrator for the various awards. It is therefore clear that the applicant has good prospects of success on appeal on the merits. For that reason alone the application ought to be allowed.

In regarding costs I believe given the applicant’s conduct in obscuring facts before the court and for the flagrant breach of the Rules of Court the applicant cannot escape an order of costs. The applicant in seeking to reopen the matter at this stage is clearly prejudicial to the respondent. There must be finality to legal proceedings. As a result of its conduct the applicant should be made to pay the respondents wasted costs for the proceedings to date.

It is accordingly ordered as follows:

The application for condonation of late noting of an appeal conjoined with the application for review be and is hereby granted.

The applicant shall pay the respondents’ wasted costs to date.

Muvngi & Mugadza Legal Practitioners, applicant’s legal practitioners