Collen Nyatsambo & 28 Others v City of Harare & John Madziwa N.O

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO.
LC/H/168/2019
HARARE, 21 MAY 2019 CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/168/2019

HARARE, 21 MAY 2019			             CASE NO. LC/H/APP/781/18

AND 14 JUNE 2019

In the matter between:

COLLEN NYATSAMBO & 28 OTHERS				Applicants

And

CITY OF HARARE							1st Respondent

And

JOHN MADZIYA N.O						2nd Respondent

Before The Honourables Kudya & Murasi, JJ

For Applicants				Mr A. Mufari

For the 1st Respondent			Mr C. Kwaramba

2nd Respondent				No appearance

MURASI J:

Applicants are in the employ of the 1st respondent as managerial executives. In 2015, the Minister of Local Government, Rural and Urban Development issued a directive to local councils through the permanent secretary. The directive had the effect of reducing the remuneration of Town Clerks in the respective local authorities. The directive also meant that such reduction in salaries was to affect the lower managerial grades. 1st respondent implemented this directive, applicants were affected by it. Applicants were aggrieved by this decision and referred their matter to a Labour Officer. A hearing was held in January 2017 and 2nd respondent found in favour of 1st respondent. 2nd respondent applied for confirmation of the draft ruling purportedly in terms of section 93 of the Labour Act, [Chapter 28:01]. The Labour Court proceeded to confirm the draft ruling. Applicants appealed to the Supreme Court and in an Order dated 29/6/18, that Court struck the matter off the roll and proceeded to set aside the Labour Court’s judgment stating that the Labour Court lacked jurisdiction.

Applicants are desirous to have the 2nd respondent’s decision impugned. However, the applicants, found that they were out of time to file the application for review, hence this application for condonation and extension of time in which to file the application for review.

Applicants story is contained in the 1st applicant’s Founding Affidavit and the rest of the applicants, in their supporting affidavits, identify themselves with the contents thereof.

The applicants’ reasons for seeking condonation can be summarised as follows. Applicants aver that after receiving the Supreme Court order referred to above ‘consultation among themselves’ commenced as regards the way forward. It is further averred that:

“The consultation took the whole of July because of the number of managers involved and the varied nature of their working circumstances.

The applicants eventually decided to seek legal advice from a number of legal practitioners in light of the legal complexities introduced by section 93(5) of the Labour Act [Chapter 28:01]. That process took another 3 weeks and culminated in the penultimate advice proffered by the applicant’s current legal representatives on 24 August 2018 to apply for a review of the draft ruling, as the appropriate remedy”

Applicants further stated, in the Founding Affidavit that they did not apply for review for a period of 349 days because they had pursued an application for confirmation of the draft ruling. The further averment was that the pursuit of the confirmation route was not mala fide and it was only at the Supreme Court that applicants became aware that the Labour Court did not have jurisdiction to entertain such an application.

As regards prospects of success, applicants first argued that these were bright as respondent had engaged in an unfair labour practice by unilaterally varying the contracts of employment. It was also argued that 2nd respondent’s decision showed that there was a gross irregularity when he made a decision which was contrary to his factual findings. A further point made by applicants was that 2nd respondent had made a finding that a Ministerial directive made under the Urban Councils Act [Chapter 29:15] superseded the provisions of the Labour Act when the later Act took precedence over other statutory averments which were inconsistent with its provisions.

Applicants further averred that the other party would not be placed under due hardship and that the demands of justice favoured the granting of condonation. In the heads of arguments applicants placed reliance on the following precedents to name but a few:

JENSEN V ACAVALOS  1993(1) ZLR 216(S)

KM AUCTIONS (PVT) LTD V SAMUEL AND ANOTHER 2012 (1) ZLR 286

MAHEYA V INDEPENDENT AFRICAN CHURCH SC 28/07

KODZWA V SECRETARY FOR HEALTH & ANOTHER 1999(1) ZLR 313(S)

1st respondent’s response is mainly by way of an affidavit by Warren Chiwawa who is quoted as the 1st respondent’s Acting Chamber Secretary. The first issue that is raised is that the Labour Court cannot exercise its review power to a draft ruling. It is further argued that the applicants delayed in applying for review because they spent a year pursuing a wrong course such that the applicants were pleading ignorance of the law which is not an excuse. 1st respondent points to the fact that after the Supreme Court Order of 29 June 2018, applicants did not immediately embark on the course of applying for review. 1st respondent pointed to the fact that applicants worked in the same environment and therefore did not need a lot of time to consult each other and come up with a position.

As far as prospects of success are concerned, 1st respondent argued that the only issue which was raised was that there was gross irregularity on the part of the 2nd respondent’s decision. It is pointed out that applicants should have demonstrated that 2nd respondent’s interpretation of section 313 of the Urban Council’s Act was erroneous.

It is further argued that applicants have not alleged that the Minister did not have the powers as stated in section 313 and that if it was accepted that both the Minister and 1st respondent acted in terms of the law, then there was no basis for the review. In oral argument, Mr Kwaramba submitted that the correct path to be taken by the applicants was to apply for a review of the Minister’s directive. 1st respondent’s counsel referred to the following cases:

NRZ V ZIMBABWE RAILWAYS ARTISANS UNION 2005(1) ZLR 341(S)

UNITED PLANT HIRE (PVT) LTD V HILLS & OTHERS 1976 (1) SA 717 (A)

VIKING WOODWORK (PVT) LTD V BLUE BELLS ENTERPRISES (PVT) LTD 1998(2) ZLR 24(S)

KODZWA V SECRETARY FOR HEALTH & ANOTHER 1999(1) ZLR 313(S)

NDEBELE V NCUBE 1992 (1) ZLR 288(S)

Counsel for both applicants’ and 1st respondent are agreed on the principles which govern an application for condonation. The broad principles are the extent of the delay, the reasonableness of the explanation proffered for the delay and the prospects of success. It is a further truism that what calls for an acceptable explanation is not only the delay in applying for the review but also for the delay in seeking condonation.

The Court will proceed to determine whether a reasonable explanation has been proffered by the applicants. Paragraph 11.6 of the Founding Affidavit informs the Court that on receipt of the Supreme Court Order, applicants immediately commenced consultations which took the whole of July. Paragraph 11.7 alleges that applicants “eventually” decided to seek legal advice and that process “took another 3 weeks”. This process “culminated in the penultimate advice proffered by the applicants’ current legal representation on 24 August 2018 to apply for a review. The statement above implies that applicants’ legal practitioners informed them on 24 August 2018 that the review route was the proper one. The second issue is that this tallies with the “3 weeks” after July. However, the documents filed of record show a different pattern. The Founding Affidavit where all this information is contained was deposed to on 4 August 2018. This was way before 24 August 2018 when it is alleged that the present legal practitioners made the decision to approach the Court on review. Lovemore Mlanda, the 14th applicant’s supporting affidavit shows that it was sworn to on 5 August 2018, way before 24 August 2018. A third issue arises out of the Founding affidavit. It shows that when 1st applicant made the affidavit, applicants had agreed to proceed to approach the Court on review. It cannot be stated otherwise. The Founding Affidavit clearly states that applicants are approaching the Court on review. This decision is as at 4 August 2018. This therefore means that what is contained in paragraphs 11.6 and 11.7 cannot be correct. A reading of the record show that the other supporting affidavits were prepared between 5 August 2018 and 10 September 2018. Applicants have not attempted to explain away the apparent inconsistences in the Founding Affidavit. In fact, applicants’ Counsel was unable to proffer any explanation for these inconsistences.

This brings me to another issue which has been omitted from the Founding Affidavit. Applicants initially filed an application on 20 September 2018 under Case Number LC/H/APP/687/18. This application was withdrawn on 2 October 2018. Asked by the Court to explain the circumstances leading to the filing and withdrawal of the initial application, applicants’ Counsel stated that the application which had been filed was defective. The present application was only filed on 18 October 2018. It has not been stated whether applicants’ counsel needed the best part of two weeks to correct a defective application. As already stated, this information is missing from the Founding Affidavit. In STEVENSON V MINISTER OF LOCAL GOVERNMENT & OTHERS 2002(1) ZLR 498(S) the following was stated:

“And, as has been said repeatedly, an Applicant must stand or fall by his founding affidavit and facts alleged in it”.

Precedent is clear on the requirements of applications of this nature. In GANDA & OTHERS V FIRST MUTUAL LIFE ASSURANCE SOCIETY 2005(1) ZLR 37 (S), SANDURA JA (as he then was) had occasion to quote MULLER JA at 41 G thus:

“In a case such as the present, where there has been a flagrant breach of the Rules of this court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and, indeed in respect of the other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success maybe”.

Was the explanation proffered by the applicants reasonable?. What should be noted is that, 1st respondent’s decision was made in 2015. It took the applicants a year before they lodged their complaint with the 2nd respondent. The decision of the Supreme Court was made in June 2018, and the applicants, who are all employed by 1st respondent, needed a full month to deliberate on the way forward. Even after the full month, the Applicants aver in the Founding Affidavit that they needed another 3 weeks. After the 3 weeks had lapsed, by 24 August 2018, the applicants only filed the initial application on 20 September 2018. The Court has to take cognisance of this as this is an unexplained gap. The initial application is withdrawn on 2 October 2018, with the present application being filed on 18/10/2018. No explanation is proffered for the patent gaps. What is clear is that both the applicants and their legal practitioners exhibited an attitude which was reminiscent of uninterested litigants. Can their explanation be taken as reasonable and therefore acceptable?. In HUGHBER PETROLEUM (PVT) LTD & ANOR VS BRENT OIL AFRICA (PTY) LTD 2014 (1) ZLR 200 (H) MATHONSI J had no kind words for legal practitioners who did not take their work seriously. He admonished such legal practitioners and stated that courts will not 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. I hold the same view as regards the conduct of both applicants and their legal practitioners in this case. It is my view that no reasonable and acceptable explanation has been proffered in the circumstances.

The issue of prospects of success should not detain the Court. The main issue raised by applicants is that 2nd respondent made a factual finding that 1st respondent unilaterally varied applicants’ employment contracts. As submitted by  1st respondent’s Counsel, the applicants need to demonstrate that a reasonable tribunal would have come to different conclusion This necessitated a finding that the Minister was disabled from giving the directive in issue and that 1st respondent had no obligation to comply with such directive. A reading of 2nd respondent’s ruling shows that 1st respondent made representations to stakeholders, including the applicants who had been informed of such a directive. The provisions of section 313 of the Urban Councils Act appear ex facie to disable the 1st respondent from not complying with a ministerial directive. Would a reasonable tribunal have come to a different conclusion. I am of the view that the answer should be in the negative.

In the draft notice of application for review, applicants raised the ground that 2nd respondent had made a finding that the Urban Councils Act superceded the Labour Act. Applicants’ Counsel was invited by the Court to indicate from a reading of the 2nd respondent’s decision, where this was stated. Applicant’s Counsel finally conceded that this was not part of 2nd respondent’s findings. The question that arises is whether applicants’ review application would be successful in the circumstances?. I hold the view that there are no prospects of success.

In the result, the Court finds that the application for condonation of late filing of an application for review and extension of time is devoid of merit and is accordingly dismissed with costs.

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MURASI J

KUDYA J:……………………………………..I agree

Mawire J. T. & Associates		-		Applicants’ legal practitioners

Mbidzo, Muchadehama & Makoni 	- 		1st respondent’s legal practitioners