Denford N Musarirri & 103 Others v Beach Consultancy t/a Aviation Ground Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/598/16
HELD AT HARARE 15 SEPTEMBER 2016
CASE NO 598/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/598/16

HELD AT HARARE 15 SEPTEMBER 2016			CASE NO LC/H/APP/451/16

& 23 SEPTEMBER 2016

In the matter between:

DENFORD N MUSARIRI & 103 OTHERS					Applicants

And

BEACH CONSULTANCY t/a AVIATION GROUND SERVICES		Respondent

Before The Honourable Chivizhe, J

For Applicants		C Chisasa

For Respondent		Miss C Kasiyo (Legal Practitioner)

CHIVIZHE J:

The matter has a long and chequered history in this court. The matter was initially placed before this court as an appeal matter under reference LC/H/486/14.  The appeal was struck off the roll on the 29th May, 2015 on account of poor citation of the parties.  The Applicants after correcting the citation then filed another application reference LC/H/APP/198/2015 for reinstatement of an appeal.  The application met with a similar fate.  It was struck off the roll on the basis of a wrong procedure having been adopted.   Undeterred the Applicants have noted yet another application this time for condonation and extension of time to file its appeal.  This is the application before me.   The application is opposed.

On the date of hearing Ms Kasiyo, on behalf of the Respondent, took a point in limine.   The point taken was that Mr Chisasa had no locus standi to represent the other employees.  It was an undisputed fact that Mr Chisasa was no longer an office-holder within the trade union referred to as NAWU.  It was Mrs Kasiyo’s further submission that the point had already been taken before this court in another matter, but judgment was reserved on the point.

Mr Chisasa in response submitted that the point was without merit.  It was correct that he was no longer an office holder with NAWU. In these proceedings however he was  appearing as a self-actor as he was one of the employees involved.  He also had been authorised by the other 103 applicants before the court to represent them. He tendered in proof certified affidavits from the 103 applicants granting him authority to represent them. It was Mr Chisasa’s submission that on the basis of Section 92 of the Labour Act [Cap 28:01] he clearly had a right to self- represent as one of the applicants and secondly he had authority to represent the rest of the applicants.  Ms Kasiyo upon tendering of the proof by Mr Chisasa withdrew the point in limine.  The point in limine having consequently been dismissed by the court proceeded to address the merits.

Application for Condonation

Mr Chisasa, submitted on behalf of the applicants that the application met all the requirements in such an application.  Reference was made to the matter of United Plant Hire matter where the requirements were set out to include

degree of non-compliance

explanation for the delay

prospects of success

Mr Chisasa submitted that in this case there had been no delay at all.  The initial appeal against the quantification award had been filed timeously.  Unfortunately it had then been thrown out for improper citation and so was the second application for reinstatement which the Applicants had through ignorance erroneously filed before this court.   The Applicants at all times were intent on having the arbitral award set aside.   There was consequently no delay in the matter as such.   The explanation tendered that the Applicants were at all material times involved in litigation before the court was also a reasonable explanation for the delay if there was any delay to talk about.

In regards prospects Mr Chisasa submitted that the proposed appeal against the award carried good prospects of success.  The Arbitrator had in the quantification award concluded that she could not quantify the award as there were no proper claimants before her.  It was Applicants position that the issue of the identity of the employees having been resolved before this court with the names of all the applicants involved now before the court the applicants had good chance of having the labour Court set aside the award by the Arbitrator and directing a fresh quantification exercise.  On that basis the appeal had good prospects of success.

Ms Kasiyo, on behalf of the Respondent submitted that the application for condonation of late filing of an appeal stood to be dismissed.  Firstly on the basis that no proposed grounds of appeal had been attached.  The court was not in a position to determine whether any question of law is to be raised in the appeal.  Secondly the delay itself of two years is inordinate.   Finally the explanation tendered for the delay was neither reasonable nor acceptable.  The Applicants filed numerous applications before the court.  They were at each stage receiving legal advice but the applications were inevitably dismissed.  The Applicants had therefore wasted the court’s and the Respondent’s time by lodging frivolous applications.   The delay itself had clearly in that instance been self–created on Applicants’ part. There was need for finality in litigation.  The court ought to therefore dismiss the applications and impose this time punitive costs against the applicants.

I am satisfied after considering submissions by the parties and upon perusal of the record that the application for condonation ought to fail.  Firstly the delay itself is inordinate.  The explanation tendered whilst it is genuine is however not plausible.  There is every reason to accept as submitted by respondent that the applicant have indeed wasted the court’s time by filing numerous applications without obtaining proper advice.  This is further compounded as once again the applicants have in filing their application for condonation of late noting of an appeal omitted to attach the proposed ground of appeal.  The court cannot decipher from the written or oral submissions what appellant seek to impugn in the award.  It is the position that in an application for condonation of late noting an appeal an applicant has to establish prospects of success.  The court can only establish prospects by an examination of the proposed grounds of appeal.  With regards an appeal from an arbitral award the Labour Court has to satisfy itself firstly that the proposed grounds of appeal raise questions of law as required in Section 98 (10) of the Labour Act [Chapter 28:01] and secondly that these grounds carry good prospects of success on appeal.  Where no such grounds are attached the court is placed in an invidious position where it cannot ascertain whether any question of law is to be raised in the appeal and the prospects thereof.  The application for condonation clearly ought to be dismissed on that basis.

I am also of the view that given the history of the matter the Applicants ought to be mulcted with costs.  Whilst it is generally the position that a litigant should not be penalised with costs especially where the litigants are lay persons or self actors.  However there are instances where a litigant who may be a lay person or a self-actor should be mulcted with costs even on an attorney-client scale.  See for instance Guard Alert (Pvt) v Mukwekwezeke & Anor 2012 (2) ZLR 83 (H).  In casu the Applicants through their conduct of filing numerous applications without seeking proper advice prior to have clearly abused court process.   There is every reason to mulct them with costs.

In the result I make the following order:

The application for condonation of late noting an appeal and extension of time within which to note such appeal be and is hereby dismissed.

The Applicants shall, jointly and severally the one paying the other to be absolved, pay the Respondents’ costs.

Lunga Gonese Attorneys, respondent’s legal practitioners