Elshaddai Housing Cooperative v Gallant Sibanda

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 20TH
JUDGMENT NO. LCH117/25
CASE NO. LCH1085/24
---------


IN THE LABOUR COURT OD ZIMBABWE HELD AT HARARE 20TH JANUARY 2025 AND

In the matter between

JUDGMENT NO.LCH117/25 CASE NO. LCH1085/24

ELSHADDAI HOUSING COOPERATIVE	APPLICANT

And

GALLANT SIBANDA	RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE , JUDGE.

FOR THE APPLICANT:MS R. KAPANGA FOR THE RESPONDENT: G.T. KAVURU

MAKAMURE J:

This is an application for condonation of late application for review and extension of time within which to file the application. It is opposed. The respondent sought to raise a preliminary issue but it was abandoned at the commencement of the hearing.

In order for an application of this nature to succeed certain requirements must be met. These include the following:

That the delay was not inordinate , having regard to the circumstances;

There is a reasonable explanation for the delay;

There are prospects of success on the merits should the application be granted;

Possible prejudice to the other party should the application be granted.

Stephen Kutiwa v Zimpost SC85/05. See also Dzvairo v Kango Products SC35/17

;Kodzwa v Secretary for Health and Anor 1999(1) ZLR 313 (S); Viking Woodwork (Private ) Limited v Blue Bells Enterprises (Private ) Limited 1998 (2)ZLR 249 (S).

The list is not exhaustive.

The facts of the matter are as follows. The respondent was employed by the appellant as an Office Administrator. The respondent was on 14th October 2022 put on suspension pending investigations for alleged acts of misconduct. However ,after five months the appellant had still not concluded disciplinary proceedings against the respondent. On 14th March 2023 respondent referred the matter to a labour officer for and I quote : ‘unlawful suspension (violation of s101(6) of the Labour Act) and non-payment of wages and balance of wages’ . Conciliation was attempted but the dispute between the parties was not resolved. A certificate of no settlement was issued and the matter was arbitrated upon. The Arbitrator found in favour of the respondent. The determination was handed down on 15th June 2023. Parties were duly advised of the outcome. Thereafter nothing seems to have happened for more than a year. On 11th October 2024 the applicant received communication from its legal practitioners indicating that the respondent was registering the arbitral award with the High Court. That is when the applicant set in motion the present proceedings.

In the founding affidavit deposed to on behalf of the applicant it is mentioned that while the arbitral award was handed down on 15th June 2023, the legal practitioner who was handling the matter left the firm of lawyers representing the applicant that same month, June 2023. It is also stated in the affidavit that the arbitral award was received by the applicant’s secretary who later misfiled it and that it was only after being alerted of the steps that the respondent was taking that the applicant acted. Indeed, the secretary one Portia Manyenya

confirmed receiving the award and forgetting to bring it to the attention of the relevant person and later misfiling it.

In Court Ms Kapanga who appeared on behalf of the applicant submitted that the delay which is sixteen (16) months is inordinate but the explanation is reasonable. She argued that after handing down the award the arbitrator delivered the it to the respondent on an unknown date but that it was not brought to the attention of one Maimba for the respondent. However as soon as the respondent’s legal practitioners of record brought it to their attention , that is , in October 2024 ,they set in motion condonation proceedings. She argued further that the prospects of success are present arguing that the Arbitrator erred in considering a matter which had prescribed. In the result there was a violation of provisions of s94 of the Labour Act(Chapter 28:01, the Act) . She argued strenuously on the prejudice that the applicant would suffer should the application fail.

The position of the respondent on the other hand is that the extent of the delay was inordinate. In an affidavit deposed to by the respondent , it was stated that the applicant did nothing about the matter for more than a year. It was pointed out that the explanation for the delay is self-conflicting in that there is mention that the legal practitioner who was handling the matter had left the applicant’s firm of legal practitioners of record and the failure by the applicant’s secretary to refer the award to the appropriate office and later misfiling it. It was therefore not clear whether or not the applicant was placing blame on the departure of the legal practitioner who used to handle the matter. The respondent’s position was that the applicant should suffer the sins of its legal practitioner of choice since the legal practitioner was its agent. The respondent also stated that on the question of the respondent’s secretary misplacing the award, the said secretary was supposed to get another copy of the award from the Arbitrator.

It was the respondent’s position that the failure to timeously file the application for review was willful and that there were no prospects of success. Mr Kavuru who appeared on behalf of the respondent argued that there was a clear disregard of the rules. Mr Kavuru argued that the explanation for the delay was not convincing. It was argued that it was not clear whether or not blame for the delay was being placed on the legal practitioner who had since left the firm of the respondent’s lawyers of record because there was no supporting affidavit from the said legal practitioner in support of the averment. Further in the event that the legal practitioner had left, the file should have been handed over to another legal practitioner in the same firm. It was further argued that some of the proposed grounds were grounds of appeal and not review. It was submitted that the application was simply a response to the application that the respondent had made to the High Court and therefore an attempt to frustrate enforcement of the arbitral award.

In response it was submitted that the delay though inordinate was not willful. It was conceded that some of the grounds were not on issues of procedure and should be struck out.

The concession on behalf of the applicant was properly made. In view of that concession, grounds (b) and (c) are struck out. This leaves only one ground for review which deals with the question of prescription of the claim.

Both parties referred the Court to authorities for which the Court is grateful. Some of the cases cited on behalf of the applicant include: Saloojee &Anor v Minister of Community Development 1965 (2) SA135 (A); Mabhena v PG 2002 (2)ZLR 63(H). And the following are some of the authorities cited on behalf of the respondent: Friendship v Cargo Carriers Ltd &Anor 2013 (1) ZLR1 (S); Viking Woodwork (Private ) Limited v Blue Bells Enterprises (Private ) Limited 1998(2) ZLR 249 (S); United Plant Hire (Pty)Ltd v Hills & Ors 1976 (1) SA 717 (A).

It is clear that the delay was inordinate. In considering the application , the requirements are not considered singly but collectively. In Stuttafords Removals v Nyamazunzu SC40/20 the Supreme Court stated that :

‘The requirements for condonation have been set out in a plethora of cases, including the case of Bessie Maheya v Independent Africa Church SC 58/07. In that case the court stated the following:

“In considering applications for condonation of non-compliance with its Rules, the Court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefore; the prospects of success on appeal; the

importance of the case; the respondent’s interests in the finality of the judgment; the convenience to the Court and the avoidance of unnecessary delays in the administration of justice.”

A reading of the record shows that the court a quo took into account one of the requirements to be considered in an application for condonation. Consequently, the enquiry that the court a quo made was inconclusive. The court only considered the extent of the delay and ended there. It did not have regard to the other considerations for the granting of condonation. This is apparent from the judgment of the court a quo where the learned judge concluded her judgment by stating:

“I am convinced that this is a case in which the sins of the legal practitioner are visited on the client. I therefore do not consider it necessary to deal with whether or not other

principles applicable in condonation are favourable to applicant.” …

Issues to do with the prospects of success on appeal, the importance of the case, the

respondent’s interests in the finality of the judgment, the convenience to the court, and the avoidance of unnecessary delays in the administration of justice were completely brushed aside by the court a quo. See Paul Gary Friendship v Cargo Carriers Limited & Anor SC 1/13. The finding that the explanation for the delay was unreasonable became the basis for

the court a quo’s justification in not considering the other factors that ought to be taken into account in condoning a party who is in breach of the Rules. With this finding, the court a quo resorted to visiting the sins of the legal practitioners on the client and dismissed the application for condonation.

….

In the case of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717(A) at 720F-G, the principles of the law are re-stated as follows:

“It is well established that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all of the facts; and that in essence it is a question of fairness to both sides. In this enquiry, relevant considerations may include the degree of non-compliance with the Rules, the explanation therefor, the prospects of success … (on the merits), the importance of the case, the respondent’s interest in the finality of his judgment, and the avoidance of unnecessary delay in the administration of justice. The list is not exhaustive.

These factors are not individually decisive but are interrelated and must be weighed one against the other; thus a slight delay and a good explanation may help compensate for prospects of success which are not strong.”

In Rosina Ngirazi v Fungai Saurosi and Another HB 84-18 the High Court stated that

: ‘It is settled in this jurisdiction that where the explanation for the delay is unsatisfactory

then the prospects of success of the appeal must be really great before the court can exercise its discretion to condone the non-compliance.’

In the present matter the applicant’s explanation was twofold. Firstly, that the award was handed to the applicant’s secretary who then forgot to hand it over to the right office and thereafter misfiled it. What this shows is that whether or not the award was timeously delivered to the applicant, it was the duty of the applicant to make a follow up early enough in order to find out whether or not the Arbitrator had determined the matter. Had this been done, the applicant would have found out that either the award had already been made and delivered or that the Arbitrator had not determined the matter or delivered the determination. This would have caused the applicant to either ask its secretary or to request for another copy of the award from the Arbitrator. The failure by the Applicant to follow up makes its explanation for the delay unreasonable. A diligent litigant is expected to follow up its case and monitor its progress. Copier Kings (Private) Limited V Dumisani Msindazi SC52/17.

Secondly, it was averred that the legal practitioner who was handling the matter left the firm of applicant’s legal practitioners of record. It is clear that the said legal practitioner did not take the applicant’s file with them. The same firm is still representing the applicant. The firm should have made a follow-up on behalf of its client. It did not. It only reacted upon being advised of the steps that the respondent was taking to enforce the award. That shows lack of diligence on the part of the applicant’s legal practitioners. The lack of diligence is inexcusable. It is trite that a legal practitioner is the litigant’s chosen agent and therefore what the agent does binds the principal. In Saloojee and Anor v Minister of Community Development (above), the court stated that : ‘… there is a point beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered .’ I respectfully associate myself with this position. In the present matter the applicant’s legal practitioners only reacted to the respondent’s application. They

showed lack of diligence. The applicant cannot escape the result of its legal practitioner’s failure to follow up the matter with the Arbitrator early enough. Such failure resulted in a delay of more than a year. The explanation is therefore not reasonable.

On the prospects of success , the applicant argued that the arbitrator erred by determining a dispute which had prescribed. The respondent on the other hand argued that the applicant was repossessing stands which it had allocated the applicant in order to offset the outstanding salaries. This according to the respondent was a recent development and fell within the provisions of s94 of the Act. If this is found to be true, then there are no prospects of success on the merits of the main matter. This means that should the application be granted the other party would be prejudiced by unnecessarily attending court and being put out of pocket. Further there is need for finality to litigation.

When the requirements are weighed one against the other, it is found that the delay was in ordinate, the explanation was not reasonable, the prospects of success are arguable and s there would likely be prejudice to the respondent . What this means is that the applicant has not discharged the onus required of it. The application must therefore be dismissed.

In view of the foregoing it is ordered that:

The application for condonation for late noting an application for review be and is hereby dismissed with costs.

MANGWANA &PARTNERS APPLICANT’S LEGAL PRACTITIONERS. MADOTSA & PARTNERS, RESPONDENT’S LEGAL PRACTITIONERS.