Unifreight Africa Limited v Priscilla Mgazi N.O and 2 Others

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/75/24
HARARE 15 NOVEMBER,2023
CASE NO. LC/H/620/23
AND 27 FEBRUARY, 2024
---------


THE LABOUR COURT OF ZIMBABWE HARARE 15 NOVEMBER,2023

AND 27 FEBRUARY, 2024

In the matter between: -

JUDGMENT NO. LC/H/75/24 CASE NO. LC/H/620/23

Unifreight Africa Limited	Applicant

Versus

Priscilla Mgazi N.O	1st Respondent

Nicholas Mukarati	2nd Respondent

Pioneer Coaches (Pvt) Ltd	3rd Respondent

Before the Honourable L. Hove, Judge:

For applicant :	Mr. C. Mucheche For respondents :		Mr. A K. Maguchu

This is an application for condonation for the late filing of an application for review and extension of time within which to apply for review of the proceedings held before the 1st respondent.

Background

The 2nd respondent was employed by the 3rd respondent as its managing director. He was charged with gross incompetence and inefficiency in terms of the governing regulations. He was found guilty and dismissed. He challenged the proceedings in an application for review which was successful and the 2nd respondent was reinstated without loss of salary or benefits. The 3rd respondent (the employer) was aggrieved and unsuccessfully brought the proceedings for review in the Labour Court. The employer was aggrieved and appealed to the Supreme Court which struck the matter off the roll and set aside the proceedings before the Labour Court and the Labour Officer.

The 2nd respondent reinstituted the matter at the Ministry of Labour. The employer unsuccessfully challenged the referral on the basis that the Labour Officer lacked jurisdiction.

The application

The employer seeks to challenge the Labour Officer’s determination on review. The employer is however out of time with a period of about two weeks hence this application to have the Court condone the failure to comply with the rules and to allow the filing of an application for review outside the prescribed time period.

The application is opposed. Preliminary issues which had been raised by the second respondent were later abandoned. But the second respondent persisted with his challenge on the merits of the application.

In considering applications of this nature the factors to be considered include

The extent of the delay

The reasonableness of the explanation for the delay

Prospects of success in the main matter

Whether or not the balance of convenience favours the granting of the application

the avoidance of unnecessary delay in the administration of justice and the respondent’s interest in the finality of his judgement.

See Bishi v Secretary of Health & anor 1999 (1) ZLR 313 and Director of Civil Aviation v Hall 990 (2) ZLR 354.

The factors, are to be considered hereunder as follows;

The extent of the delay

The applicant submitted that the delay was a period of about two weeks and that the delay was not lengthy and therefore reasonable under the circumstances. It was also argued that the rules ought to be respected for administrative efficiency but in casu, the applicant deserved condonation. The Court must keep in mind that it had to do justice. The Court was referred to the Maheya v Independent African Church 2007 (2) ZLR 319 where the Court stated that the Courts must apply established principles bearing in mind that it had to do justice.

The circumstances of this case however make it clear that a delay of about two weeks is inordinate. The dispute between the parties first arose in or around April 2010. The parties have dragged themselves through disciplinary proceedings at the work place, at the Ministry of labour, at the Labour Court and finally the Supreme Court. The dispute was again referred to the Ministry of Labour. This was now several years down the line. The parties by now should have an interest in seeing the finalization of the matter, failing then to comply with the rules for a period of about two weeks is under the circumstances inordinate. It is a policy of law that there be finality to litigation and in the circumstances of this case, the delay is inordinate. The law will help the diligent and not the sluggard.

See the case of Ndebele v Ncube 1992 (1) ZLR 288 where the Court stated that; “it is a policy of the law that there should be finality in litigation.”

and also, that,

“the law will help the vigilant but not the sluggard”

Explanation for the delay

The applicant ought to have clearly explained the delay. He glosses over a lot of important details like what happened after the 9th of June when the decision he seeks to have reviewed was handed down.

He does not state how long it took him to challenge the confirmation proceedings in relation to when the law changed and how soon after the law changed that he filed this application.

The details would have assisted the Court in assessing the reasonableness or otherwise of his delay.

An applicant seeking the indulgence of the Court must satisfy the Court that there are compelling circumstances and should not gloss over the details of the explanation. See in this regard the case of Friendship v Cargo Carriers Ltd v anor 2013 (1) LZR 1. In the circumstances, am not satisfied with the explanation given.

Prospects of success

The applicant intends to challenge the Labour Officers determination on the basis of three intended grounds. Firstly, that the applicant had no jurisdiction, secondly, that the applicant’s findings were irrational. Thirdly, the decision was not supported by reason.

The Court will consider these three intended grounds to establish whether or not the applicant’s prospects of success are good.

Ground number 1

The basis upon which the applicant argues that the Labour Officer had no jurisdiction is that the matter had allegedly prescribed. The issue therefore is whether or not the claim had prescribed. The claim cannot have prescribed because there still subsists an employer/employee relationship between the employer and the employee. The dispute between the parties is continuing. It is the clear position of law that a claim will prescribe in terms of Section 94 of the Labour Act if it is referred to a Labour Officer within two years from the date when the dispute first arose. This position is however subject to the provisions of subsection (2) of Section 94 which provides that the prescriptive period shall not apply to a dispute which is continuing in nature. The dispute between the parties is continuing in nature and the applicant cannot correctly argue that the matter has prescribed, and on this basis, the applicant’s chances of succeeding on this ground are very slim.

Ground of appeal number 2

This intended ground is also less likely to succeed. This is so because the ground is so widely couched that it is not a proper ground for review. The ground alleges irrationality without pinpointing in what aspects the decision can be said to be irrational. In Chinganga v Shava SC 15/22 the Court held that grounds that are widely cast to the extent that they fail to identify the specific evidence that was unreliable and to which the respondent and the Court could relate are liable to being struck out. This ground of appeal is more likely to suffer the same fate and thus it has little or no prospect of success.

Ground of appeal number 3

A perusal of the Labour Officer’s draft ruling shows that he gave reasons for his draft ruling. If the applicant did not agree with the reasons given it could have appealed and not alleged incorrectly that there are no reasons.

The intended grounds for review therefore enjoy little or no prospects of success. The result is that the applicant’s prospects of success are poor.

See the case of Bishi v Secretary for Education 1989 (2) ZLR 240 the Court held that the factors to be considered are not individually decisive but are interrelated and must be weighed one against the other. The balance of convenience and the need to prevent unnecessary delays in the administration of justice by granting condonation where applicant enjoys no good prospects of success, where the delay is inordinate and no reasonable explanation is given favors the respondent and the application must fail.

Order:

The application for condonation for the late filing of review and extension of time to file the cation for review be and is hereby dismissed with costs.