Bowline Bedding Manufacturers V Bowline Bedding Manufcturers Workers Union & Z.w. Tagwireyi N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/30/25
HELD AT HARARE 29 JANUARY 2025
CASE NO. LC/H/1158/24
AND 30 JANUARY 2025
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IN THE LAB OUR COURT OF ZIMBABWE			JUDGMENT NO.LC/H/30/25

HELD AT HARARE 29 JANUARY 2025				CASE NO. LC/H/1158/24

AND 30 JANUARY 2025

IN THE MATTER BETWEEN:-

BOWLINE BEDDING MANUFACTURERS			APPLICANT

AND

BOWLINE BEDDING MANUFCTURERS

WORKERS UNION							FIRST RESPONDENT

Z.W. TAGWIREYI N.O.						SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant				Ms. N. Maboyi

For First Respondent		Mr. L.C. Ndoro

For Second Respondent		Mr. T. Makuwatsine

MURASI J.,

This is an application for condonation of the late filing of an application for Review. The facts, which are common cause are that the Second Respondent rendered a determination which served on the Applicant on 5 June 2024. In terms of the Rules, Applicant was supposed to the application for Review within 21 days. This was not done. Applicant has therefore approached this Court for condonation.

Preliminary Issue

At the commencement of the proceedings, Mr. Makuwatsine, for the Second Respondent stated that he was applying for the upliftment of the bar operating against the Second Respondent for failure to file heads of argument timeously in terms of Rule 26 (2) of the Labour Court Rules, 2017. He stated that he had received the notification of the filing of heads of argument on 17 December 2024. He stated that as he was proceeding on leave with his family during the festive period, he was unable to attend to the filing of the heads of the argument. He further submitted that his holiday was in Kariba and he had access to the internet but did not attempt to address the issue. He further stated that he tried to file the heads of argument on 16 January 2025 but these had been rejected.

The Court declined to lift the bar operating against the Second Respondent. Second Respondent practically did nothing for a full month after receiving the notification of the filing of heads of argument by the Applicant. Clearly, Second Respondent expected the dies induciae to stop while he was on holiday. He did not request any member in the law firm to attend to the matter whilst enjoying his vacation. He was on holiday in a place where facilities were present which permitted him to attend to the matter. It is trite that a court may, on good cause shown, condone any non-compliance with the rules. The circumstances or cause must be such that a valid and justifiable reason exists why compliance did not occur and why non-compliance should be condoned. The present circumstances clearly show that Second Respondent has not shown ‘good cause’ why such condonation should be granted. In Hughber Petroleum (Pvt) Ltd & Anor v Brent Oil Africa (Pty) Ltd 2014 (1) ZLR 200 (H), MATHONSI J (as he then was) had this to say at page 205 D:

“These courts will never accept legal practitioners who elect to conduct their practices tardily and in a chaotic manner to extend such tardiness and chaos to the doorsteps of the court. Courts of law have a duty, not only to conduct their affairs in a dignified and transparent manner in dispensing justice, but also to protect their integrity against the machinations of the bad elements in the profession.”

The explanation tendered by Second Respondent’s legal practitioner was woefully deficient, unreasonable and therefore unacceptable.

THE MERITS

Ms. Maboyi stated that she would abide by the documents filed of record. She submitted that she was also relying on the averments made in the Founding Affidavit. As to the explanation of the delay in filing the application for Review, she stated that the Applicant’s Managing Director was out of the country in India where he was receiving medical attention. Ms. Maboyi further submitted that the Second Respondent’s determination was received by the Managing Director’s secretary who filed it away. Asked by the Court whether this was brought to the attention of the Managing Director, she replied in the affirmative. Ms. Maboyi also confirmed that Applicant’s offices were operational during the absence of the Managing Director. The Court further enquired of Ms. Maboyi as to who was in charge of Applicant in the interim and she stated that she had not received instructions in this regard. She also could not say where the other Directors were during the period in question. The Court was making these enquiries as these issues were not addressed in the Founding Affidavit. It was further averred in the Founding Affidavit that an application for condonation was made under Case Number LC/H/788/24 but this had subsequently been withdrawn by the Applicant.

As to the prospects of success, Ms. Maboyi submitted that Applicant would rely on the provisions of the Labour Amendment Act 11 of 2023. She argued that the matter was brought before the Second Respondent in December 2023, but had only been concluded in February 2024. She said this was against the provisions of statute. In this regard, she stated that she was relying on the provisions of section 63 of the Act, as amended. Her argument was that the Second Respondent was enjoined to conclude the hearing within thirty (30) days. When the section was read to her, she stated that she was mistaken as to the time period.

Ms. Maboyi also stated that she was relying on the judgment of CHIDZIVA J sitting at Gweru. The Court enquired whether the judgment in question was not based on the Ndlovu Case by MOYA-MATSHANGA J (May Her Soul Rest in Peace) and she responded in the affirmative. The Court brought to her attention that the judgment had been set aside by the Supreme Court sitting at Bulawayo. Ms. Maboyi stated that she was not aware of that development.

In response, Mr. Ndoro submitted that from the discussions that had taken place between the Court and the Applicant’s legal practitioner, it appeared that there was a concession made that there was no proper application before the Court. He added that the explanation tendered was insufficient in the circumstances and that there were no prospects of success having regard to the fact that Applicant’s reliance on the Labour Act was misplaced and incorrect. He also stated that the precedent sought to be relied upon was wrong. Mr. Ndoro prayed for the dismissal of the application and that Applicant should bear costs on a legal practitioner/client scale. He argued that First Respondent had indicated in the Opposing Affidavit that the precedent relied upon by the Applicant had been set aside but the Applicant had continued to plough on disregarding the advice that had been tendered by the First Respondent.

ANALYSIS

In Kombayi v Berkhout 1988 (1) ZLR 53 (S), it was held as follows:

“The broad principles the court will follow in determining whether to condone the late noting of an appeal are the extent of the delay, the reasonableness of the explanation for the delay and the prospects of success. If the tardiness of the Applicant is extreme, condonation will be granted only on his showing good grounds for success of his appeal.”

Further in Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and Others (2010) 31 ILJ 1413 LC, it was also held as follows:

“In explaining the reason for the delay, it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This, in my view, requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a recordal of the dates relevant to the processing of a dispute or application as the case may be.”

The first issue that exercised my mind was the submission that the Managing Director was away in India receiving medical attention. It was also averred that the determination from the Second Respondent was received by the Managing Director’s Secretary. There is no Supporting Affidavit from the said Secretary explaining what that Secretary did with the determination when it was received at Applicant’s place of business. That Supporting Affidavit would have shed light on whether the Secretary is the one who advised the Managing Director and if any instructions had been given on the matter. Ms. Maboyi confirmed that the issue was brought to the attention of the Managing Director. It is not stated who brought this to the attention of the Managing Director. An explanation by the Secretary in a Supporting Affidavit would have assisted in the explanation.

The issue relates to the action or inaction by the Managing Director. It is has not been explained in the Founding Affidavit what actions were taken when information was received that the determination had been delivered. The Founding Affidavit does not relate to any instructions being given to anybody to deal with the matter. The next narration refers to an application for condonation which was filed and later withdrawn. Clearly the timelines and actions between  the receipt of the determination and the filing of the application are not given. The present application was filed in November 2024. Again, the explanation is found wanting. When asked about this anomaly, Ms. Maboyi sought to explain that there was an attempt to engage the First Respondent and reach a settlement. It is a well established principle of procedural law that, generally, applicant must stand or fall on his or her founding papers and the averments made therein. In this respect, it is the failure by the Applicant to fully explain those features and facts which is of extreme concern. The Court is of the firm view that the explanation tendered is woefully inadequate rendering it unacceptable.

As stated earlier, Ms. Maboyi attempted to rely on the amended section 63 of the Act in advancing the point that the Second Respondent took a longer time than provided in the statute to complete the deliberations. It is pertinent to reproduce the provisions. Section 63 (3b), as amended, provides:

“Subject to subsections (3c) and (3d) where a designated agent is authorized to redress any dispute or unfair labour practice in terms of subsection (3a), no labour officer shall have jurisdiction in the matter during the first thirty days after the date when the dispute or unfair labour practice arose, but a labour officer may assume such jurisdiction ( and exercise in relation to that dispute or unfair labour practice the same powers that a designated agent has in terms of this section) after the expiry of that period if the proceedings before a designated agent to determine that dispute or unfair labour practice have not earlier commenced.”

The provisions of this subsection are clearly unambiguous. A simple interpretation of the subsection shows that it precludes a labour officer from dealing with a matter brought before a designated agent within the first thirty days. A labour officer can only deal with the matter after the expiry of the stated period. There is one rider though, for the labour officer to takeover, the matter must not have commenced before the designated agent. The period within which the proceedings before the designated agent are to be completed are not related to in this particular subsection. The submissions by Applicant that Second Respondent ought to have completed the hearing in terms of the subsection are therefore incorrect.

The last point raised by Ms. Maboyi should not detain the Court. It was averred that Applicant was  relying on precedent from CHIDZIVA J  in the N. Richards case. The matter dealt with by the Learned Judge in Gweru relied on the decision of MOYA-MATSHANGA J. The decision was overturned by the Supreme Court sitting at Bulawayo in SCB 96/24. There are therefore no prospects of success in the matter.

Mr. Ndoro applied for costs on a legal practitioner/client scale stating that this was because the Applicant had not taken heed of the advice proffered by the First Respondent in the Opposing Affidavit. It was averred that had Applicant taken note of this advice, First Respondent would not suffered the out-of-pocket expenses in the circumstances. In Tamanikwa & Anor v Zimbabwe Manpower Development Fund & Anor SC 73/17, BHUNU JA had this to say:

“..those who deliberately defy wise counsel and go on to negligently cause others patrimonial loss must not cry foul when they are made to make god the loss.”

A reading of the record shows that First Respondent referred to the Supreme Court judgment in the Opposing Affidavit and provided the Case number. Diligent research by Applicant’s legal practitioners would have confirmed that position and a proper decision in the matter would have followed. Alas, this was not to be. It is my view that this is a deserving case where punitive costs should be allowed.

In the result, the Court makes the following Order:

The application for condonation of the late filing of an application for Review is hereby dismissed for lack of merit.

Applicant to meet First Respondent’s costs on a legal practitioner/client scale.

Maboyi and Associates-			Applicant’s legal practitioners

Thondhlanga & Associates-			First Respondent’s legal practitioners

Macharaga Law Chambers-			Second Respondent’s legal practitioners.