Canape Investments (Pvt) Ltd v Wilson Pasipanodya & 6 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/671/2014
HARARE, 16 SEPTEMBER 2014
CASE NO. LC/H/671/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/671/2014

HARARE, 16 SEPTEMBER 2014	                  CASE NO. LC/REV/H/19/14

AND 10 OCTOBER 2014

In the matter between:-

CANAPE INVESTMENTS (PVT) LTD				Applicant

And

WILSON PASIPANODYA					1st Respondent

And

STEPHEN TARAMBWA						2nd Respondent

And

NELSON MLANDWA						3rd Respondent

And

TEA SIANKUNKA							4th Respondent

And

NDABENHLE MAHLANGU					5th Respondent

And

NKULULEKO SIZIBA						6th Respondent

And

SIMILO MKANDLA						7th Respondent

Before Honourable E. Muchawa, Judge

For Applicant		-	N. R. Mutasa (Legal Practitioner)

For Respondent		-	B. Magogo (Legal Practitioner)

MUCHAWA, J:

The applicant noted an application for review on or about the 28th February 2014 before this Court.  This is the matter which was set for hearing.  At the hearing, applicant’s legal representative proceeded to make an oral application for condonation of late noting of the review.  This seems to have been prompted by the point in limine raised, that as the application was filed out of time without any application for condonation, it was a legal nullity.  This is my ruling on the application for condonation of the late noting of the review.

The parties, who are in the relationship of employer and employee had a dispute which culminated in an arbitral award by arbitrator W.T. Pasipanodya.  This award was granted in default on the 14th January 2014.  Applicant became aware of the award on 20 January 2014.  No application for rescission of the default judgment was done.  Instead, applicant filed the application for review before this Court.

The application for review is brought in terms of Section 89 (1) (a) of the Labour Act [Chapter 28:01] as read together with Rule 16 of the Labour Court Rules, 2006.  Such an application should be made within twenty one days from the date when the proceedings are concluded.

The application was filed some eight days later.

The law is clear on the considerations in an application of this nature.  In Kombayi v Berkhout 1988 (1) ZLR 53 (SC) such broad principles are;

the extent of the delay.

the reasonableness of the explanation for the delay.

the prospects of success on the merits.

I proceed to consider these below.

Extent of the delay

In this case the delay is agreed to be eight days only.  Since the delay is only about a week, I believe this is not inordinate.  This should however be balanced and justified by the explanation for the delay.

Explanation for the delay

The applicant’s lawyer explains that it was his own mistake that caused the delay in filing.  He alleges that he was instructed to file the application for review on the 6th of February 2014.  He claims to have operated under the mistaken view that he had 30 (thirty) days within which to file the application.  I commend the lawyer for his candidness with the court.

Respondent dismisses this explanation on the basis that as a legal practitioner, applicant’s lawyer is aware that the Rules of the Labour Court SI 15 of 2006 are the ones that guide how and when pleadings should be filed.  He cannot therefore be treated as a lay person or self actor.

I find in favour of respondent in this case.  If applicant was a self actor, I would have afforded it a degree of tolerance and eschewed too rigid an adherence to procedural requirements in respect of meeting the time frame.  To hold otherwise would lead to chaos and defeat the purpose of the Rules.

The explanation tendered is therefore found not to be reasonable.

Prospects of Success

Applicant submits that it has good prospects of success on the merits of the application for review.  Several infringements of the rules of natural justice by the arbitrator, in particular the audi alteram partem rule are cited.  It is alleged that the parties were no treated with equality and they were not given a full opportunity of presenting their case.  This is said to be an infringement of Article 18 of the Model Law and of principles in section 7 of the Labour Arbitrator Regulations 2012 (SI 173/2012).  The regulations emphasize the need for impartiality.  In particular section 7 (1) (f) provides that;

“a fair and adequate hearing which assures that both parties have sufficient opportunity to present their case is held and that where written submissions are made, to ensure that these are exchanged between the parties and each party is given a reasonable opportunity to make counter submissions.”

The allegations against the arbitrator are that;

he originally set the matter down on 4th November 2013 for arbitration on and following certain objections and a telephonic request for postponement, the arbitrator proceeded with a pre-arbitration hearing.

applicant was not advised of the directions from the arbitrator emerging from the pre-arbitration meeting.

there was no response from the arbitrator to applicant’s request for the directions.  Instead the arbitrator is said to have written to respondents advising them to apply for default judgment.

the arbitrator proceeded to determine the matter as unopposed yet he had been advised that applicant’s offices would be closed during that period.  The letter requesting this by the respondent was never served on applicant.

the arbitrator merely granted a default judgment without considering the evidence before him.

applicant was not given any notice of the hearing for the 14th January 2014 but the award reflects that applicant was in default.

On the other hand, respondent submits that the applicant has adopted the wrong procedure.  It is averred that an application for rescission of judgment should have been made before the arbitrator instead of the application for review.  For this I was referred to the case of Tim Enterprises (Pvt) Ltd v Jerina Makina LC/MD/02/09 and John Grogan, Workplace Law, 2nd Edition, Juta & Company Ltd, 19976 p 124.

I am guided in my reasoning by the case of Redstar Wholesalers v Living Stone Mutomba SC 142/2004.  In that case the court essentially said that where a judgment is given in proceedings conducted in the absence of one of the parties, it is a default judgment and especially if the judgment itself is clear on the point.  In such a case the available recourse is to apply for default judgment.

I believe that is essentially the issue in this case.  There is a default judgment.  The best placed person to hear the application where good cause will be shown, is the one who heard the matter in default.  A higher court is placed in the embarrassing situation of assessing the veracity of facts that it has no knowledge of.  I believe this is why a party has to apply for rescission of judgment before the tribunal before which it is alleged to have defaulted.

In the circumstances I find that applicant has no prospects of success as the procedure adopted is wrong and premature.

Consequently the application for condonation of the late filing of the application for review is dismissed with costs.

COSTA & MADZONGA, Applicant’s legal practitioners

MAKUWAZA & ASSOCIATES, Respondents’ legal practitioners