COLD Storage Company Limited V Shingirai Muzanenhamo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/46/2016
HARARE, 21 JANUARY, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO. LC/H/46/2016

HARARE, 21 JANUARY, 2016 			     CASE NO. LC/H/APP/802/15

AND 5 FEBRUARY, 2016

In the matter between:-

COLD STORAGE COMPANY LIMITED		-	Applicant

And

SHINGIRAI MUZANENHAMO			-	Respondent

Before Honourable L.M. Murasi, Judge

For Applicant	-	Mr Z.W. Makwanya (Legal Practitioner)

For Respondent	-	Mr S. Chipomho (Trade Union Representative)

MURASI J:

This is an application for condonation for late noting of an application for rescission of judgment.

The facts in this matter are largely common cause.  Applicant was initially represented by Ms Magoge from the National Labour Relations Reference Centre.  The appeal by the applicant was initially set down for 12 March 2015 before Justice Chidziva.  On that date Ms Magoge applied for postponement of the matter to enable her to file heads of argument in the matter.  The application was granted and the matter was postponed to 30 March 2015 by consent.  Ms Magoge proceeded to file her heads of argument on 18 March 2015 as undertaken on 12 March 2015.  At the hearing of 30 March 2015, Ms Magoge did not turn up and a default judgment was granted on application by the respondent.  It is this default judgment which is the subject of the present application.

Mr Makwanya for the applicant stated that applicant’s default was not wilful as the previous legal practitioner had not attended the court proceedings.  He submitted that the applicant only became aware of the default judgment when it was served with the application for quantification of the award.  He further submitted that applicant thereafter made investigations and discovered that a memorandum from the Law Society of Zimbabwe showed that Ms Magoge was on suspension which ended in June 2015.  Mr Makwanya further stated that applicant immediately made the application for condonation for late application for rescission of judgment.  It was further argued that in light of the facts of the matter the explanation tendered was reasonable in the circumstances.  In respect of the prospects of success on appeal, Mr Makwanya submitted that the grounds of appeal relied upon by the applicant were sound as the contract of employment was illegal and the parties could not continue perpetuating an illegality.  It was further submitted that an appellate court was likely to find in favour of applicant.

Mr Chipomho for the respondent submitted that the explanation tendered by the applicant was not reasonable.  He stated that applicant was aware of the dates when the matter was going to be heard.  It was further submitted that the applicant only reacted when the respondent served on it the application for quantification of the arbitral award.  Mr Chipomho further argued that applicant did not have any prospects of success on appeal as the arbitrator had correctly interpreted the provisions of the Labour Act.  He called for the dismissal of the application.

It is trite that condonation is granted at the discretion of the Court.  Such discretion should not be exercised arbitrarily or upon the mere asking. It should be granted with proper judicial discretion upon sufficient and satisfactory grounds being shown by the applicant.  It has been held that such factors as the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interests in the finality of the judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice should be taken into account.  It is also a truism that the explanation tendered should be both reasonable and acceptable.  The reasonableness of the explanation is largely determined by the circumstances of the case.

In casu, it is common cause that Ms Magoge attended court on 12 March 2015 on behalf of applicant.  It is also common cause that she applied for a postponement to 30 March 2015 to enable her file heads of argument.  It is also common cause that Ms Magoge filed the heads of argument on 18 March 2015.  It is further common cause that Ms Magoge did not attend court on 30 March 2015.  It is the explanation tendered by the applicant that the Court has to consider as to its reasonableness and whether it is acceptable.  Applicant avers that its investigations showed that a document from the Law Society of Zimbabwe showed that Ms Magoge was on suspension up to June 2015.  What the document does not show is when she was placed on suspension.  The document does not show when it was issued.  Mr Makwanyua sought to inform the court that, the date should have been carried in a newspaper article which he was not aware of.  Clearly the reason sought to be relied upon has a number of loopholes to it.  The document is not dated.  The document does not show when Ms Magoge was supposedly placed on suspension.  Therefore it cannot be said with certainty that the reason Ms Magoge did not attend court was that she was on suspension.  It cannot be the only inference to be drawn from the document tendered.  The evidence shows that she attended Court on 12 March 2015 and was due to return on 30 March 2015.  Did the suspension begin on 13 March 2015?  Further, the record shows that she filed her heads of argument on 18 March 2015.  Did the suspension begin on 19 March 2015 which therefore incapacitated her from attending court on 30 March 2015?  Again there is a dearth of information in this regard.  Mr Makwanya sought to rely heavily on this explanation.  As stated by the court in the hearing applicant should have approached the Law Society of Zimbabwe and obtained cogent proof that Ms Magoge may not have attended the court on 30 March 2015 as she was suspended.  This however does not exonerate the applicant itself.  The record shows that payments were made both to the Registrar and the Deputy Sheriff at the beginning of December 2014.  As conceded by Mr Makwanya, these payments, must have come from the applicant.  It is therefore a bit surprising that the applicant would go as far as seven (7) months without liaising with its Counsel as to the progress made in the matter.  Mr Makwanya stated that there were interactions between applicant and Ms Magoge but the court dates were not communicated to the applicant.  I do not believe this to be the case.  The appeal was filed in December 2014.  The heads of argument were filed on 18 March 2015 after the matter had already been set down.  Is it being alleged that when the matter was originally set down for 12 March 2015 applicant was not aware?  It is my view that applicant is not being candid with the court in this respect.  In Kondonani vs Muvami HH 81/07 it was held:

“It is trite that there is a certain degree of negligence in failing to observe the rules of the court.  The application for condonation such as the one before me is therefore an application for excusing the negligence of the offending party and the degree of such negligence then becomes a factor, together with other factors that will ensure that at the end of the day justice as between the parties prevails.  Condonation should not be granted for the mere asking.  The applicant still has to satisfy the court that there is good cause to excuse the negligence and grant the indulgence.”

Applicant’s story that it was not aware of what was happening to the matter filed with the Court for close to seven months is quite astounding to say the very least.  If it is the truth, then it amounts to contributory negligence on its part.  The court is however reluctant to make a finding that the “reason” proffered by applicant is one which has the effect of insulting the intelligence of the court as enunciated in Songrore vs Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (SC).  The Court is of the view that the explanation tendered by the applicant is not reasonable in the circumstances and thus not acceptable.

I now turn to the prospects of success on appeal.  Mr Makwanya had some difficulty in addressing this issue.  On the one hand he made submissions that this was a fixed term contract and had been tacitly renewed over the years on similar terms.  He stated that the first contract had been from 18 October 2011 to 31 January 2012.  Thereafter the contract had been renewed by the applicant.  However, he made a complete turn and stated that this was an illegal contract which the applicant was not willing to perpetuate.  This is why it was so indicated in the letter dated 11 June 2015.  The court marveled at the about turn in view of the facts of the matter.  It should be remembered that the argument of the illegality of the contract was rejected by the arbitrator.  The arbitrator’s reasoning was that the Labour Act governed all matters to do with employment and where there was a statute inconsistent with the provisions of the Labour Act the latter Act would prevail.  The court inquired of Mr Makwanya as to the correctness of this interpretation and he confirmed that it was indeed correct.  To that extent can the arbitrator’s finding be classified as irrational?  I think not.  The court also brought to Mr Makwanya’s attention the issue of estoppel.  Applicant’s Counsel was at pains to concede that this doctrine clearly applied to his client.  Estoppel generally is the doctrine which precludes a person from denying/asserting anything to the contrary of the law, truth; either by acts of judicial or legislative officers, or by his own deed, acts or representations either express or implied.  Applicant had employed the respondent from 2011 and only raised the issue of illegality in June 2013.  It was applicant who had set the terms and conditions of this otherwise “illegal” contract.  Clearly applicant was estopped from arguing that the contract of employment was illegal.  Furthermore the facts of the matter clearly militate against applicant making this excuse.  The facts show that applicant on 30 May 2013 drafted a contract which had retrospective effective from 1 February 2012 to 31 August 2013 and respondent had refused to sign it.  It was only after respondent had referred the matter to the NEC that applicant raised this issue in the letter dated 11 June 2013.

The question is was the arbitrator wrong in rejecting this argument from the applicant? I think not.  As stated in Innscor v Chimoto SC 6/12:

“A principle has now firmly established to the effect (that) an appellate court should not interfer with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.”

It is the court’s view that there was no misdirection on the part of the arbitrator.

In conclusion the court finds that the explanation for the default not reasonable and therefore not acceptable.  Further, there are no prospects of success on appeal.

In the result the application for condonation for late application for rescission of judgment is dismissed with no order as to costs.

Chinawa Law Chambers, applicant’s legal practitioners