Zimbabwe Revenue Authority v Chenai Nyaguse & 12 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/839/2014
HARARE, 10 OCTOBER 2014 &
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/839/2014

HARARE, 10 OCTOBER 2014 &		 CASE NO LC/CON/H/36A/2014

19 DECEMBER 2014

In the matter between

ZIMBABWE REVENUE AUTHORITY				APPLICANT

Versus

CHENAI NYAGUSE						1ST RESPONDENT

And

SUSAN PHIRI							2ND RESPONDENT

And

LOVEMORENGWARATI						3RD RESPONDENT

And

BERTHAN MABAMHE						4TH RESPONDENT

And

EDMORE DHLAKAMA						5TH RESPONDENT

And

STANFORD SITHOLE						6TH RESPONDENT

And

COSMAS USHUMBA						7TH RESPONDENT

And

L C GOMO								8TH RESPONDENT

VINCENT MAZURU						9TH RESPONDENT

And

TSITSI MANGOSHE						10TH RESPONDENT

And

JOSEPHINE DUBE							11TH RESPONDENT

And

BRIGHTON MATINGU						12TH RESPONDENT

And

ZIMRA TRADE UNION						13TH RESPONDENT

Before The Honourable E Muchawa  :  Judge

For the Applicant       Ms R Mukozho   (Legal Practitioner)

For the Respondent   R Matsikidze  (Legal Practitioner)

MUCHAWA J:

Before me is an application for condonation of late noting of an appeal.

On 3 June 2013 the respondents obtained an arbitral award in their favour. The applicant lodged an appeal against that award on 10 June 2013 in case number LC/H.412/13. That appeal was struck off the roll on the basis that the applicant had irregularly cited respondents as Chenayi Nyaguse and “12 Ors”. Consequently the appeal was defective. That judgment was handed down on 14 March 2014.

On 14 March 2014, the applicant filed this current application, it being out of time in noting its appeal from the date of the arbitral award.

Both parties have set out the issues I should consider in an application such as this. I am particularly relying on the case of De Kuszaba – Dabrowski et Uxor V Steel N O 1966 RLR 60. Therein BEADLE CJ set out the broad pricniples to be considered as:

The extent of the delay;

The reasonableness of the explanation for delay;

Whether the litigant himself is responsible for the delay;’

The prospects of success on appeal should the application be granted; and

The possible prejudice to the respondent should the application be granted.

I proceed to consider each of these principles below.

Extent of the Delay

The applicant claims to be some ten months out of time in filing its appeal. (Seems to be nine months, however).

Rule 15 of the Labour Court Rules, S I 59 of 2006, provides that an appeal shall be filed within twenty one days from the date when the appellant receives the award. This is generally an inordinate period but should be assessed against the explanation given.

Reasonableness of the explanation for the delay

The applicant explains that the first appeal noted on 10 June 2013 was filed on time. The applicant avers that it genuinely believed that the appeal was properly before the court as the respondents did not raise any points in limine in their heads of argument. Such points were only raised on 3 March 2014. The matter was only set down for hearing in March 2014 yet the applicant had noted the appeal in June 2013.

The applicant argues that it was not inactive in the ten months and the fault was not the litigant’s but rather that of the legal practitioners caused by a genuine mistake as to the citation of the parties.

The respondent dismisses the explanation rendered by the applicant as one based on negligence on the part of the applicant rather than a genuine mistake.

My attention was drawn to the fact that in noting its appeal, the legal practitioner had been so negligent as to put his name in as the applicant, instead of that of his client. This is borne out by the record.

The fact that the applicant is also explaining away its initial defective notice of appeal, on the failure of the respondent’s lawyers to advise them timeously of the defect is said to be unacceptable.

I find that explanation to be an admission of lack of diligence on the part of the applicant’s lawyers rather than a genuine mistake. My position would be different if the applicant did not have the benefit of legal representation. Then I would have afforded the applicant a degree of tolerance and eschewed too rigid an adherence to procedural requirements (See Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC). For a lawyer, who is supposed to be an expert on the law, to say their laxity in applying the law correctly is a genuine mistake, without pointing to a plausible reason for such a stance, is unacceptable.

I take the stance in the Mubango v Undenge HH-110-06 matter. There is a limit to the extent to which a litigant should escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise would have a disastrous effect upon the observance of the rules of this court.

Whether the Litigant himself is responsible for the delay

I have already found that the delay is due to the applicant’s legal practitioners. I find too that the applicant cannot escape responsibility. I quote from Mubango V Undenge supra for my stance:

“The attorney, after all, is the agent whom the litigant has chosen for himself, and there is little reason why, in regard to condonation for failure to comply with a rule of the court, the litigant should be absolved from the normal consequences of such a relationship.”

Prospects of Success on Appeal

The applicant argues that it has good prospects of success on appeal.

It is averred that the appeal is on a point of law as it questions the legality of the charges, whether there was victimisation, whether there was an unfair labour practice, the conditions of employment and the legal procedure adopted.

The respondents counter this by stating that there is no allegation that the appeal is on a question of law and that it deals a great deal with the factual conclusions of the arbitrator.

I was urged not to reopen factual issues as this would be tantamount to becoming a court of first instance.

I was referred to the agreed terms of reference to the arbitrator which were duly signed by the parties. These are they:

Whether or not the charges against the first to ninth applicants are calculated to victimise and/or harass the first to ninth applicants and therefore illegal.

Whether or not the charges against the first to the ninth applicants are an unfair labour practice against the tenth applicant calculated to violate the first to the ninth applicants’ right to freedom on association at the workplace as well as their right to privacy.

Whether or not the disciplinary charges and proceedings against the first to the ninth applicants must be declared illegal and be stayed.

If the answer to paragraph 3 above is not in the affirmative, the arbitrator to act as Disciplinary Tribunal for the charges against the first to the ninth applicants individually subject to provisions of the Arbitration Act.

The grounds of appeal are as follows:

The learned arbitrator with respect erred and grossly misdirected himself on a point of law by declaring that the charges levelled against the respondents are illegal when:-

The charges were being derived from a registered and recognised Code of Conduct;

The charges were aimed at maintaining discipline at the workplace that being the employer’s duty and right.

The respondents were reasonably suspected of having committed an offence of disseminating or circulating pornographic material at the workplace in violation of the appellant’s IT policy.

The learned arbitrator with respect erred and grossly misdirected himself on a point of law by finding that the charges were calculated to victimise the respondents in the face of the evidence that:

Not only the respondents were suspended and charged of circulating pornographic material at the workplace thus putting to rest the argument that they were selected for discipline.

The pornographic material was found in the respondent’s PST files through the Riverbed system hence they are answerable hence the need to set in motion a disciplinary machinery in the Code of Conduct.

The respondents conduct or claim was an attempt to avoid the employer from disciplinary (sic) them.

The learned arbitrator with respect erred and grossly misdirected himself by finding that charges derived from the Code of Conduct against employees constitutes an unfair labour practice by the appellant when there was no right of the respondents that were violated both substantively and procedurally (sic).

The learned arbitrator with respect grossly misdirected himself that the appellant’s conduct of charging the respondents amounts to creating conditions which are not favourable to the respondents to enjoy working for it as that takes away the employer’s right to discipline its employees who are suspected of having committed an offence and maintain order at the workplace with a view of improving efficiency and productivity.

The learned arbitrator with respect failed to give due weight to the legal procedure which is enshrined in the Code of Conduct that is to let the employer present its case and give the employee the right to defend him/herself as all the respondents had agreed to this arrangement in their evidence. This will also uphold natural justice.

The learned arbitrator with respect erred at law in staying proceedings and charges against the respondents as the appellant was left without recourse against its employees who are reasonably suspected of having committed acts of misconduct.

A reading of the agreed terms of reference to the arbitrator and the grounds of appeal clearly shows that the arbitrator was asked to make a factual finding as to whether the respondents were being victimised or not. If a finding of victimisation or harassment was made, then the conclusion would be that the disciplinary proceedings were illegal and therefore an unfair labour practice. In the event of such a factual finding then such disciplinary proceedings would be stayed. The same factual conclusion would lead to the arbitrator acting as the disciplinary tribunal by consent.

In the light of the above, I find that the appeal deals with the factual findings of the arbitrator and does not raise any points of law.

In any event the arbitrator’s factual findings are sound in the light of the inspection in loco conducted and the analysis of the evidence before him, the separated disciplinary cases, and the Riverbed system. I cannot fault the conclusions reached as being grossly unreasonable so as to constitute a question of law.

Consequently I find that the applicant does not have any chances of success on appeal.

Accordingly the application for condonation of the late noting of an appeal be and is hereby dismissed with costs on an ordinary scale.

Sinyoro & Partners , applicant’s legal practitioners

Matsikidze & Mucheche, respondents’ legal practitioners