Café Expresso v Lilford Nhandara and Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/199/2021
HARARE, 07 SEPTEMBER 2021
CASE NO. LC/H/APP/275/20
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/199/2021

HARARE, 07 SEPTEMBER 2021		CASE NO. LC/H/APP/275/20

AND 05 NOVEMBER 2021

In the matter between:

CAFÉ EXPRESSO								APPLICANT

versus

LILFORD NHANDARA 							1ST RESPONDENT

DAVID BADZA								2ND RESPONDENT

Before The Honourable Kudya J

For Applicant   -     			RE Nyamayemombe (Legal Practitioner)

For1st Respondent		 	No Appearance

For 2nd Respondent 			E Dongo (Legal Practitioner)

KUDYA J:

This is an application for condonation for late filing of heads of argument by the Applicant employer.  The application is opposed by the Respondent employee.

The employer contends that it failed to file its heads of argument because of lockdown restrictions and because of administration glitches at their offices.  It contends further that it has a good case on the merits.  This is so given the fact that it intends to have the Supreme Court determine the issue of currency conversion which it considers a question of law and only the domain of the Supreme Court for its resolution.

The employee states that part of the period quoted by the employer was not under lockdown restrictions.  He also says that there are no prospects in the main matter because the currency question was also raised by the employer when the confirmation order was registered.  It is his considered view that the condonation application is bad at law and should be dismissed.

The test for condonation is settled.  Jansen vs Acavalos 1993 (1) ZLR 216 (S).  Each of the tenets is discussed below

EXPLANATION AND EXTENT OF DELAY

The employer says it should have filed Heads of Argument by 3 March 2021 yet it only did so on 11 March 2021 thus making it out of time by about 7 days.  It says 7 days cannot be adjudged inordinate by any stretch of reasoning.  It says the delay was due to the lockdown and due to their moving of offices hence misplacing of documents.

Employee contests that and says during October 2020 to November 2020 courts were operational.  Taking into account that by that period he had served the employer with his notice of response it was imperative that the employer file its Heads of Argument 10 days within that quoted period.  He says lockdown only became operational from December 2020 hence the excuse about the delay in March is not well founded and should be dismissed by the court as a lie.

He says also that the employer has no good case on appeal as it raised the same currency conversion argument at the registration of the award proceedings.  He thus implores the court to refuse the condonation sought by the employer.

In its right of final response the employer was mum on the lockdown submissions as indicated by the employee thus suggesting that its excuse was thus a non-issues.   It is therefore clear that no good excuse was given for the default and judging by the timelines given by the employee it was inordinate.  The matter cannot succeed on the basis of this rung.

PROSPECTS OF SUCCESS

Employer contends that the currency conversion debate is a question of law determinable by the Supreme Court.  It draws the court’s attention to the reasoning in the registration judgment where the Heads of Argument also stated that the currency conversion was a point of law only determinable by the Supreme Court.  The employer to that extent reasons that such is a question of law thus these are prospects of the intended leave to appeal application.

On the hand the employee says the currency conversion was never an issue since at the time of contracting of the parties since they contracted in USD and at no time did he seek to introduce the RTGS argument.  It is his view that factually there should not have been any debate about what currency he should be paid as that was settled by his contract of employment.  He reasons therefore that the legal issue of currency conversion therefore does not arise It thus stands to reason that there is no basis for the court to grant condonation relief in a matter which has no prospects which employer argues are present the employer.  It is indeed clear from the record that the currency issue was decided as being an issue only to be determined by the Supreme court.  This was the reasoning of both the Labor court and the High court.  If placed within the context of the case which the labor officer and labor court by extension were seized with it.  It is clear that such was the legal issue worthy of determination.  Such what however remains the preserve of the Supreme Court.

The law is clear that it is the cumulative effect of the condonation tenets that concludes a matter.   See Zindofo vs CAFCA SC64 -17 porous excuse can be made up for by a merited or bona fide case on the merits (See insert) Since the legal question remains determinable by the Supreme court it would be just and equitable that the employer presents its argument in the leave application.   The condonation application shall be granted for the reasons discussed above.

IT IS ORDERED THAT

The application for condonation of late filing of head of argument for leave to appeal it being merited it and hereby succeeds.  Each party bears own costs.

MC Mukome Legal Practitioner    -  For Applicant

Saunyama Dondo Legal Practitioner – For Respondent