Givemore Mhliwa v Turnall Holdings

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/707/16
HELD AT HARARE 19 MAY 2016
CASE NO
JUDGMENT NO LC/H/707/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/707/16

HELD AT HARARE 19 MAY 2016				CASE NO LC/H/APP/176/16

& 4 NOVEMBER 2016

In the matter between:

GIVEMORE MHLIWA			Applicant

And

TURNALL HOLDINGS			Respondent

Before The Honourable Chidziva, J

For Applicant		V Duri (Legal Practitioner)

For Respondent		I Chingarande (Legal Practitioner)

CHIDZIVA J:

This is an application for condonation of late filing of heads of arguments.

The brief background of this matter is that on 24 October 2015 the applicant made two (2) applications, being one for review and the other for appeal against the procedure taken by respondent and the ultimate decision arrived.  The respondent filed a notice of response on 13 November 2015 and served the applicant on 18 February 2016.  In order to regularise the heads of argument, applicant made a chamber application for condonation for late filing of heads of argument.

The respondent has filed a notice of response opposing the application.  The reasons for opposing that application are as follows

“The application is opposed, the reasons for the default are not acceptable at law and the main matter does not enjoy good prospects of success.  Moreover the application has been overtaken by events and there is prejudice to the respondent (See attached copy of application for dismissal in terms of Rule 19 and consequently the respondent prays that the application be dismissed.”

The applicant has submitted that the delay in submitting heads of argument  was caused by the fact that he had been helped on a prodeo-amico basis.  When the services were withdrawn by the senior legal practitioner of that firm he could not afford to engage a legal practitioner as he had been recently dismissed.  For that reason he submitted that this explanation was reasonable.

He further stated that the delay was not inordinate as he had not delayed by one and a half months.  It was further submitted that he had good prospects of success on merits weighed in favour of condonation.  The applicant does not cause a potential or real prejudice to the other party and justice, fairness and equity favours that the strict court rules and hear the matter on merit and equal footing.

Rule 19 (1) of the Labour Court Rules states that

“Where an applicant or appellant is to be represented at the hearing of the application appeal or review the legal practitioner shall—

within fourteen days of receiving a notice of response to the application, appeal or review, lodge with the Registrar heads of argument clearly outlining the submission he or she intends to rely on and setting out the authorities if any which he or she intends to cite.”

It is common cause that the applicant failed to file heads of argument within

fourteen days.  As a result the applicant is barred and the matter could be dealt with as an unopposed matter in terms of Rule 21 (6) (b) of the Labour Court Rules.

For an application of condonation to succeed the following factors should be satisfied i.e. that

a reasonable explanation for the delay has been offered.

Applicant enjoys good prospects of success on merit.

The delay is not inordinate

The delay does not cause a potential or real prejudice to the other party.

Justice, fairness and equity favours that the court deports from the strict court rules and hear the matter and hear the matter on merit and equal footing.

Whether there is a reasonable excuse for the delay

The applicant delayed by one and a half months to file heads of argument.  His explanation for the delay is that the lawyers who were representing him on prodeo caused the delay because the senior legal practitioner of the firm thought it was an under deal arrangement and the help was terminated.  Furthermore the legal practitioner who assisted on a pro-amico basis was on leave the whole of January 2016.  The applicant was a self actor and also said he was in extreme financial difficulties as he had just left employment.  In the case of Winnie Muzuva v Renia Musara HH 217 – 11 MURRY CJ as then he was on wilful default stated that

“The meaning of “wilful default” was aptly put by MURRY CJ in the case of Neuman (Pvt) Ltd  v Marks 1960 (2) SA at 173 A – D where he stated the principle as follows

The test to my mind is whether the default is a deliberate one i.e. when the defendant with full knowledge of the set down and of the risks attendant on  his defendant default, freely takes a decision to refrain from appearing.”

The applicant stated the reasons for his delay.  He did not deliberately refrain from responding.  HUNGWE J in the case of Sedco v Chimhere 2002 (1) ZLR 424 stated that

“I am not satisfied by the explanation put forward for the late filing of the application for condonation.  However, he being a self actor, he may well have acted out of pure ignorance of procedure.  His case deserves to be heard.”

From the explanation given by the applicant it is clear that the default was not wilful and case deserves to be heard.

Whether there are prospects of success

SANDURA JA  in the case of Kodzwa v Secretary for Health 1999 (1) ZLR 313 at 315 F – Y states that

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation it is not necessary decisive.  Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

The applicant has cited three irregularities which were done by the respondent.  They are as follows

The respondent committed an irregularity by breaching the procedures for handling disciplinary proceedings as far as authorities of hearing disciplinary proceedings are concerned.   In the case of Mugwenhi v Sedco Ltd & Others 2000 (1) ZLR 93 it was held that such an irregularity constituted a serious procedural irregularity that warranted dismissal of the decision arrived at by the employer.

The appeals committee was not properly constituted.  The case of Mineral Marketing Corporation of Zimbabwe v Mazvimavi 1995 (2) ZLR 353 stated that an improperly constituted appeals committee is a serious procedural irregularity that warranted the reversal of the decision arrived at by the  employer.

The respondent willy-nilly breached the Internal Code of Conduct in the period provided as the time frame upon which disciplinary proceedings should be completed.

The respondent in this case took four times longer and in many cases this breach has always warranted reversal of the decision.

On appeal the applicant stated that a decision arrived at as a result of ignoring vital evidence is unjustified.  In the case of Mhowa v Beverly Building Society 1998 (1) ZLR 546 the Supreme Court held that decisions arrived at after ignoring vital evidence is unjustifiable and should be reversed.

The applicant also stated that the charge preferred against him was improper.  In the case of Brake & Clutch P/L v Nyama SC 42-01 the court held that a decision arrived at using an improper charge is unfair dismissal.

It is because of these reasons that this court is of the view that there are prospects of success on appeal.

Whether the delay is not inordinate

The applicant lodged the heads of argument by one and a half months after the prescribed fourteen day period.  The applicant gave an explanation for this delay and this court has accepted that there was a reasonable excuse for this delay.  In the case of Forestry Commission v Moyo 1997 (1) ZLR 254 a delay of (7) (2) two years was condoned.  It has also been submitted that the matter has not yet been set down.  The explanation given by the applicant is acceptable and this court finds that the delay was not inordinate.

Whether the delay causes a potential or real prejudice to the other party

The delay in lodging heads of argument is one and a half months and this court has found that

The delay was not inordinate

The reason given for the delay is excusable and there are good prospects of success

The matter has not yet been set down.

It is therefore this court’s finding that that there is no prejudice to the other

party if condonation for late filing of heads of arguments is granted.

In the case of Dalny Mine v Banda 1999 (1) ZLR 220 it was stated that labour matters should not be decided based on procedural technicalities.  A refusal to grant the application for condonation means that this would be the end of the matter.  Justice fairness and equity in this case demands that the matter should be heard on the merits.

The applicant’s application has merits.   Accordingly this court orders that

The application for condonation be and is hereby granted.

There is no order as to costs.

Nyangulu & Associates, applicant’s legal practitioners

Matizanadzo & Warhurst, respondent’s legal practitioners