Ulink Freight (Pvt) Ltd v C. Mahamba & C. Moyo

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/289/24
HARARE 07 MAY, 2024
CASE NO. LC/H/28/24
AND 03 JULY, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 07 MAY, 2024

AND 03 JULY, 2024

In the matter between: -

JUDGMENT NO. LC/H/289/24 CASE NO. LC/H/28/24

Ulink Freight (Pvt) Ltd	Applicant

Versus

C. Mahamba	1st Respondent

C. Moyo	2nd Respondent

Before the Honourable L. Hove, Judge:

For Applicant  :	Ms E. Gwiza

For 1st and :	no appearance

2nd Respondent :	in person

This is an application for condonation for the late filing of an application for review. When the matter was first heard on 7 May 2024 both respondents were in default. The Court sought to seek clarifications from the 2nd respondent and invited him to Court. During the 2nd hearing on 3 July 2023, the 2nd respondent appeared in person.

The decision that is being sought to be challenged on review was received by the applicant on 22 November 2023. The legal practitioner who was handling the matter was away on a honeymoon and only managed to see the determination on 11 January 2024 after their firm’s annual shutdown as well as her honeymoon.

The position of law

The requirements for an application of this nature to succeed have been well established. They are outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (s).

These are;

the extent of the delay

the reasonableness of the explanation for the delay

The prospect of success should the application be granted See also Jansen v Avocalos 1993 (1) 2I6 (5).

In the case Melane v Santam Insurance Co.Ltd 1962 (4) SA 531, the court held that

“Ordinarily these facts are interrelated they are not individually decisive … save of course that if there are no prospects of success there would be no point in granting condonation”

The extent of the delay

The applicant stated that the application ought to have been filed on 22 December 2023. This however was a public holiday. In terms of the rules of the Labour Court, a person wishing to seek review of proceedings should do so within 21 days. See rule 20 (1) of the Labour Court rules, 2017. The applicant admits receiving the ruling on 22 November 2023. 21 days from that date would have expired on 21 December 2023 and not on 22nd of December 2023 as alleged by the applicant. It is therefore wrong and an attempt to mislead the Court to state that the 21 days expired on the 22nd of December 2023, a public holiday. When the application for condonation was filed on 15 January 2024, the applicant was out of time by a period of about 25 days.

The explanation for the delay

The explanation is that the legal practitioner dealing with the matter had gone on a honeymoon and the legal practitioners’ firm had proceeded on their annual shut down in December 2023. This explanation is not a reasonable one considering that the decision had been received in November 2023. The legal practitioner, knowing that she was getting married and proceeding on a honeymoon, could have either arranged with her colleagues to manage her cases for her or alternatively, ensure that the application for review was filed before going on leave. Just leaving ones files without arranging for eventualities that often arise with these matters was negligent. Negligence cannot be a reasonable explanation for failing to comply with the rules.

A legal practitioner is expected to execute his or her duties diligently and to ensure compliance with the rules of Court. See Nguruve v Secretary of the Commission of Inquiry 1988 (1) ZLR 244 (SC).

Prospects of success

The applicant has in my opinion good prospects of success. They allege that the determining authority in the tribunal a quo failed to comply with the procedures applicable in that forum. He failed to issue a certificate of no settlement as was required in terms of the provision of the Labour Act [chapter 28:01] (the Act). The 2nd respondent ought to have issued the certificate of no settlement, but he did not. He admits that;

“the only error I made was not issuing a certificate of no settlement”

The 2nd respondent therefore admitted to having failed to conduct the proceedings in terms of the governing provisions.

He explained to the Court that after the parties had failed to agree, the parties had encouraged him to go on to write a determination. The applicant’s representative would occasionally call him inquiring after the determination. The second respondent then

“duly issued a determination.”

He further explained that he did not issue the certificate of no settlement as he had the consent of both parties to proceed to write the determination.

That the second respondent proceeded to breach the provisions of the Act because he was encouraged to do so by the parties or that he and the parties had agreed to do so, cannot be a valid reason for failing to comply with the law. Parties cannot agree to breach the law. He ought to have proceeded to issue the certificate of no settlement as he was required to do in terms of the law.

The applicant has a reasonably arguable case. Its prospect of success, should the application be granted, are good.

In the final analysis the delay of 25 days was inordinate and unreasonable more so because the applicant sought to mislead the court in so far as the last day for filing was concerned. The applicant’s lawyers also acted without due diligence in proceeding on leave without first doing the needful or without first arranging with colleagues to manage her files. The reason for failing to comply with the rules was due to applicant’s lawyer’s dilatoriness. In the case of The applicant H.J.Voester (Pvt) Ltd V Save Valley Conservancy SC 20/14 the Supreme Court refused to grant condonation where the cause for delay was due to applicant’s dilatoriness. The court stated that;

“there was no merit in the application for condonation because the applicant’s predicament was due to its own dilatoriness.”

However, the applicant does have good prospects of success and that tilts the odds in its favour. The application for condonation for late noting of an application for review must thus be allowed.

The balance of convenience and the interests of justice favours the granting of the application for condonation. See Jongwe v National Foods Limited and Labour Court HB 147/18.

Order

The application for condonation for late noting of an application for review is hereby granted.

Each party bears its own costs.