Varichem Limited v Howard Kwenda

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO /LC/H/198/2014
HARARE, 20 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO /LC/H/198/2014

HARARE, 20 MARCH 2014&				  CASE NO LC/H/707/2013

28 MARCH 2014

In the matter between:

VARICHEM LIMITED						APPELLANT

Versus

HOWARD KWENDA						RESPONDENT

Before The Honourable L Kudya   :  Judge

For the Appellant				S A Tawona  (Legal Practitioner)

For the Respondent			G Pendei (Trade Unionist)

KUDYA J:

This matter was set down as an appeal by the appellant against the setting aside of the respondent’s dismissal by the N.E.C. appeals committee for the Chemicals and Fertilisers Manufacturing Industry.On the set down date the appellant made an oral application for the condonation of its late filing of the heads of argument in the matter. It is the condonation application which is the subject matter of the instant judgment.

The basis for the application is that the applicant’s lawyers experienced administrative hitches at their law firm thus resulting in the late filing of the heads of argument. It also argues that it has good prospects of success on appeal hence prays that the court condones its late filing of the heads and allow the matter to be concluded on the main merits.

In response the respondent opposed the application arguing that the excuse for the delay is unreasonable and that the appellant has no good prospects of success on appeal. To that end the respondent prayed that the condonation application be dismissed and that the applicant remains effectively barred as regards the issue of filing heads thus effectively denying it audience on the main appeal. The law on condonation is clearly set out in Janson v Acavolos1993 (1) ZLR 216 (S). Primarily the three main considerations are the reason for the delay, its extent and the prospects of success on the merits.

Applying the Jansen principles to the facts of the instant case it is important to note the issues discussed below.

It is worth noting that the heads were due to be filed in September 2013 and were only filed some six months later that is on 18 March 2014. There was only a bold excuse that the applicant’s lawyers experienced house-keeping issues with their staff arrangements with lawyers who were originally seized with the matter joining a new firm to the Secretary who ought to have filed the heads going on maternity leave till January 2014. There is no explanation as to why even after the realisation that the heads were out of time that the applicant did not bother to approach the court at that stage to have its contemptcondoned by the court. All that is on file is evidence that the applicant just waited for the main matter to be set down to make the instant application.

The law is clear that it helps the vigilant and not the sluggard as indicated by the respondent in his submissions. Whilst the court agrees that the time factor alone is not decisive it is now settled law that when a party is out of time it must not only explain the delay in the compliance with the rules in the main matter but also to explain its delay in seeking such condonation. (See Mashaveiv ZUPCO 1998 (1) ZLR 567 (H)). In the instant case all that is on record are submissions to the effect that the appellant’s lawyers had house-keeping problems and since labour matters need not be decided on technicalities therefore the delay should be condoned.

Such an approach is to say the least unfortunate. This is so because it appears that the applicant lost sight of the fact that even though matters have to be concluded on merits due process has to be followed otherwise the attendant court rules and regulations would end up being a mere window dressing exercised/façade.

It is clear that the delay was quite inordinate and the explanation thereof though on face value appears reasonable if gleaned at deeper within the context of the fact that this is a whole law firm dealing with such a case and if the one officer was ill disposed to attend to it within the prescribed time lines the assignment could have been given to another officer to ensure compliance at least from the minute that it was realised that there was a breach of the rules.

On the merits it need be stated at the outset that the respondent expressed reservations about the applicant adopting the filed heads as its submissions to support the fact that it has merits on appeal. The court noted however that asking the applicant to address it afresh on prospects would be tantamount to asking it to repeat what is in the heads. It was therefore the court’s considered view that there was nothing irregular in the applicant’s reliance on the filed heads as submissions demonstrating the merits on appeal. To that extent the court gleaned the merits from the heads and oral submissions made by the respondent on that aspect.

What is pertinent to note on merits is the fact that the applicants main argument is that the NEC appeals body erred to decide on the matter based on the respondent’s contract only to the exclusion of the collective bargaining agreement which contained provisions which amplified the issue of working hours for the respondent. It need be noted that the law is clear that before one can be said to have wilfully disobeyed an order he has to be clear of what is expected of him. (See MuchakatavNertherburg Mine 1996 (1) ZLR 153 (SC).

In the instant case it is not clear whether the respondent was pointing to the nexus between his contract and the agreement. Since the case is mainly hinged on this aspect it is clear that the prospects of success are not so bright. The cumulative effect of the delay and the slim prospects of success lead the court to the inescapable conclusion that the condonation application is not merited. It should thus accordingly fail.

IT IS ORDERED THAT

Condonationof late filing of heads by the appellant being without merit it be and is hereby dismissed.

Appeal is consequently dismissed for non-compliance with rules of court by the appellant.

Each party bears own costs.

Muza&Nyapadi, appellant’s legal practitioners