Johnson Mvula & 3 others v Little Children Of Our Blessed Lady Sisters

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/212/24
HARARE 04 MARCH ,2024
CASE NO. LC/H/1028/23
AND 10 MAY, 2024
In the matter between: -
Johnson Mvula & 3 others
Applicants
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==============================In the matter between: -

**Johnson Mvula & 3 others**

**Applicants**

Versus

**Little Children Of Our Blessed Lady Sisters**

**Respondent**

**Before the Honourable L. Hove, Judge:**

**For applicants :** Mr. J.Mufukiza

**For Respondent :** Mr. S. Chako

This is an application for condonation for late noting of an appeal and extension of time within which to file a notice of appeal against the determination handed down on 23 October 2023.

**Background facts**

The applicants were employed by Martindale Catholic School in different capacities. Sometime in June 2021, the respondent purported to retrench the applicants allegedly without following lawful retrenchment procedures in terms of Section 12C (1)(a) (i) (ii) of the Labour Act [Chapter 28:01] (the Act). The applicants challenged their retrenchment arguing that the process was flawed. The respondent proceeded with the process regardless and paid the applicants their retrenchment packages.

The dispute was then referred to the National Employment Council for Welfare and Educational Institution. The designated agent heard the matter and handed down a determination on 23 September 2023. The designated agent held partly as follows;

a) the matter was not prescribed in terms of law
b) the matter was not fatally defective
c) the application for joinder by the respondent is here by sustained
d) the respondents waived their rights to challenge the retrenchment process when they did not return the retrenchment packages paid to them by the applicant

The applicant sought to correct the citation of the respondents before the designated agent after realizing that they had incorrectly cited the respondent as Martindale Catholic school instead of Little children of our blessed lady sisters.


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 The designated agent refused to grant this request on the basis that he was now functus officio and in any case the respondent was challenging the incorrect citation arguing that there is no entity by the name Martindale Catholic School. Such an entity did not exist and the registered name of the entity was Little Children of our Blessed Lady sisters.

The applicants sought to appeal against the decision of the designated agent. When they intended to file their notice of appeal with the Labour Court, they could not. They stated that;

“… however, network was bad on the day coupled with one of us who changed her email at the last minute having noted that she had initially given the wrong details. Filing was finally done by 16:25 hours. When compliance check was done the following morning, it was rejected as it was filed out of time. We were advised of the rejection of our notice of appeal hence the application for condonation for the late noting of appeal and extension of time within which to file.”

Preliminary points by the respondents

The application

1. The applicant cites a non-existent party. Correct name is Little Children of Our Blessed Lady Sisters
2. Application is defective

Because the applicants did not attach the record rule 22 (2) as read with the record Rule 19 (1)
(b) whether the application is defective for citing a non-existent party

The applicants had sought, before the tribunal a quo, that they be allowed to correct the wrong citation. The designated agent refused to grant this application on the basis that he was functus officio. This preliminary point will be dealt with in detail together with the merits of the case.

Whether or not the application is defective for failure to attach the record

Secondly, the respondents argued that the application is defective for failure to attach the record.

The applicants have been alleged to have failed to attach the minutes or the record of proceedings.
In terms of section 22(2) as read with Rule 19 (1) (b).

Rule 19 (1)(b) provides as follows;

“A person wishing to appeal against any decision, determination or direction referred to in the Act, shall, within twenty-one days from the date when the appellant receives the decision, determination or direction or award, do the following-


(a) ...


(b) Make three copies of any of the documents referred to in sub paragraphs (i) to (iv) as are relevant to the appeal, if they are in the position of the appellant”

My emphasis.

It is clear that the applicants could only produce the record only if the records were in their possession in terms of the rules.

In casu, the respondent has not demonstrated that the said documents were in the position of the appellants.

In order for this preliminary point to succeed the respondent ought to have shown;

1. That the documents (record) have not been attached, and
2. That the record or the minutes of the proceedings were in the position of the applicants

The respondent has not in any way shown that the record was in the possession of the applicants as is required to do in terms of law to prove that the applicants were in breach of the provisions of the rules.

It is normally the case that the record of proceedings is kept by the designated agent and not by one of the parties. But if the respondent has reason to believe that the said record was in the applicant position then they ought to have proved that fact. It is an accepted principle of law that he who alleges must prove. See **Heywood Investments (pvt) Ltd t/a GDC Hauliers v Zakeo SC 32/13.**

No proof was adduced before the court that the applicant had in their position the record of proceedings. This court cannot grant relief if the grounds for the remedy have not improved.

In **Zimasco v Chizema SC 38/07** the Court held that;

“… the court’s brief is to determine on the basis of evidence before it whether or not the case has been proved against the respondent it needs no emphasis that he who alleges anything against another person, must prove such allegation.”

See also **Nyahondo v Hokonyo & ors 1997 (2) ZLR 457 (SC)**

There is therefore no marriage in this preliminary point and it must be dismissed.

No proof was adduced before the court that the applicant had in their position the record of proceedings.

The merits

In considering applications for condonation for noncompliance with the rules of court, the Court has a discretion which it has to exercise judiciously 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; a) the degree of non-compliance
b) the explanation thereof
c) prospects of success on appeal, and
d) the interest of justice and the need for finality to litigation

See the cases of **T.Dube Mavarikenu v D Vudhla and anor SC 5/11 and Maheya v Independent African Church 2007 (2) ZLR 319.**

These factors are considered here under as follows;

**Degree of non-compliance**

The applicants have stated in their papers that the delay was for a period 12 days. I accept the applicant’s arguments that the delay cannot be said to be inordinate and the Court should lean towards pardoning the applicants for this minimal delay.

**The explanation thereof**

The explanation is that when they tried to file their notice of appeal on their damages on 21 November 2023 in the afternoon, they were told in the e-filling department that the network was a bit slow and there were other people who were busy with the computers also filing their cases. Then one of the applicants decided to change her email details. This delayed the process and they were only able to file by 16:25 hours. The 21st of November 2023 was the last day for them to file their notice of appeal. The delay in finalizing the filing on that day meant that the compliance checks the following day revealed that there were one day out of time. They decided to come together again to do the application for condonation. It took them a further eleven days and they were thus out of time by a total of twelve days.

This explanation is a reasonable one and the court is inclined to condone the failure to comply with the rules in view of the explanation tendered for the delay.

**Prospects of success**

The prospects of success will hinge upon whether or not the court will agree with the determination appealed against that the failure to retain the retrenchment packages constituted a waiver on the part of the applicants, even though the respondent had registered its objection to a process that was being done contrary to the provisions of the law. The despondent argue that the failure to return the packages constituted a waiver. The applicants argue that it did not constitute a waiver of their rights. They argued that they were owed monies in relation to unpaid salaries and they assumed that the employer was paying them for the unpaid salaries and they did not understand the payments to relate to retrenchment packages since they had challenged the process. They have an arguable case.

The interest of justice and the need for finality to litigation


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In the interest of Justice, the court will condone if refusal result in forfeiting a right. In this case, the right to appeal. In the case of **Regal V Superstate (Pvt) Ltd 1962 3 SA 18 AD** the Court stated that

“An application such as the present will receive favourable considerations because a court is hesitant to allow a party to forfeit the enforcement of a right by reason of noncompliance with such a rule.”

So, the court will not allow a litigant to forfeit a ride provided sufficient and satisfactory grounds have been shown.

The dispute between the parties has been outstanding for a long time such that there may be a reason to not grant the application in the interest of an accepted principle of law that there should be finality to litigation but on the other hand one does not want to do an injustice to litigants.

**See Ndebele v Ncube 1992 (1) ZLR 288.**

In the interest of justice, the court must be able to weigh the need to finality to litigation and the need to do justice. In casu, the failure to comply was not a fragrant disregard of the rules, the delay was minimal and the applicants have an arguable case that they did not waiver their rights, under these circumstances the interest of Justice weigh in favour of the granting of the application.

The designated agent in my opinion failed to apply his mind to an application that was properly made before the issuing his final determination that the applicants be allowed to amend the citation of the employer. Before issuing a final determination, a judicial authority is not fanctus officio.

**In Commercial Farmers Union V Mhuriro & ors 2000 (1) ZLR 405** the Court stated that;

“When a matter is pronounced upon, the functions of the judicial body tasked with such pronunciation ceases and terminates by law. The matter cannot be related to again.”

When he refused to grant the application to amend the citation, the designated agent was still pronouncing himself. He even at that stage granted one of the applicant’s prayers, he therefore misdirected himself in considering himself functus officio at that stage before his final pronouncement on the issues before him.

I could have remitted the matter to the designated agent to pronounce himself on this matter but the labour Court is mandated to ensure the expeditions settlement of Labour disputes. The court is in a position to decide that issue to avoid unnecessary delays in the administration of justice and in terms of section 2A (i) (f) of the Act.

The courts have pronounced themselves in several cases that it is not desirable that Labour disputes be decided on the basis of legal technicalities but on their merits.


In the case of Dalny Mine v Banda SC 39/99, the court stated that;


“As a general rule it seems to me undesirable that Labour relations matters should be decided on the basis of procedural irregularities. By this I do not mean that such irregularities should be ignored I mean that the procedural irregularities should be put right.”

In labour matters, the courts have allowed that improper citation of the parties can be regularized by allowing applications for the amendment of such pleadings to reflect the correct citation. See in this regard the case of **Edmore Mapondera and 55 ors v Frederick Rebecca Goldmine Holdings Ltd SC 81/22.**

In the result the designated agent ought to have allowed the application for the amendment. Further by weighing the relevant considerations to be taken into consideration when deciding an application such as this one I am satisfied that the application should succeed. The following order is therefore made;

**Order**

1) The application for condemnation and extension of time within which to file an appeal be and is hereby granted.
2) The applicants be allowed to amend their pleadings to reflect the correct name of the responden.t
3) The applicants should file their appeal within ten days of the date of this order.
4) Each party based its own costs.
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