Joseph Shoma v Terrence Mugamu T/A Total Marondera Service Station & Anor

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IN THE LABOUR COURT OF JUDGMENT NO. LC/H/85/24
ZIMBABWE HELD AT HARARE 27TH
CASE NO. LC/H/906/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 27TH FEBRUARY 2024 AND 29 FEBRUARY 2024

In the matter between JOSEPH SHOMA

And

TERRENCE MUGAMU T/A

TOTAL MARONDERA SERVICE STATION

And

JUDGMENTN NO. LC/H/85/24

CASE NO. LC/H/906/23

APPLICANT

1ST PRSPONDENT

NEC for THE MOTOR INDUSTRY	2ND RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPLICANT : MR N. T TSARWE ( LEGAL PRACTITIONER) FOR THE 1ST RESPONDENT : MR S. K. VAMBE (HUMAN RESOURCES) FOR THE 2ND RESPONDENT : NO APPEARANCE

MAKAMURE J :

This is an application for condonation for late filing an application for review. It is opposed. PRELIMINARY ISSUES

At the commencement of the hearing , preliminary issues were raised on behalf of the 1st respondent . These are that the draft application for review does not comply with rules of this Court ,Statutory Instrument 150/2017( the Rules); that the relief sought is incompetent and further that the review application is premature. The Court was referred to case law which included the case of Stephen Mackenzie v Rio Tinto Zimbabwe SC144/04.The argument with respect to the preliminary issue that the application for review is premature is that the applicant did not exhaust domestic remedies which are provided for in the applicable employment code Statutory Instrument 35/2011.Mr Vambe who represented the 1st respondent submitted that the applicable code of conduct provided for both appeal and review and that under the  circumstances it was wrong for the applicant to approach this Court

seeking relief .In the Stephen Mackenzie case (above) the Supreme Court held that domestic remedies should be exhausted before approaching the Labour Court.

In reply Mr Tsarwe who appeared on behalf of the applicant argued that that the review powers which are provided for in the Labour Act Chapter 28:01 ( the Act) cannot be taken away by the authorities cited on behalf of the 1st respondent. Mr Tsarwe submitted that the preliminary issue has got no merit. As for the propriety of the application Mr Tsarwe argued that the application is in compliance with the Rules as submitted in the papers filed of record. On the relief sought, the argument on behalf of the applicant was that the prayer is proper and the case of Zimbabwe Passenger Company v Beaular Mashinge SC21/21 which the 1st respondent sought to rely on does not support the 1st respondent’s case.

In assessing the preliminary issues, I note that Mr Vambe did not point out the specific section of the applicable code which stops the applicant from approaching this Court on review. As he correctly submitted if the provisions of an employment code have not been exhausted it is incumbent upon the litigant to pursue them to finality. However, the Act provides as follows:

‘ 92EE Grounds of review by Labour Court

Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with is Act may be brought on review before the Labour Court shall be—

absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned:

gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.

Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.’

My understanding of the above provisions in relation to the present matter is that where a party is aggrieved by any of the above, they are entitled to approach this Court. It is only during the review proceedings that the issue of premature application can be properly

considered. For that reason, I find that there is no merit in the preliminary point raised in this regard. It is dismissed.

On the question of the intended prayer on review , the applicant prays for reinstatement with an alternative prayer for payment of the appropriate damages should reinstatement be no longer possible. In Zimbabwe Passenger Company v Beaular Mashinge (above) the Supreme Court held that an order for reinstatement is proper where the Court found that the proceedings in the lower tribunal were a nullity and set aside such proceedings. I therefore agree with Mr Tsarwe that the relief sought is proper. In the circumstances I find that the second preliminary point has no merit. It is dismissed.

Having found that there is nothing wrong with the prayer , there is also no merit in the preliminary issue that the draft application is proper. This is so because once the application is in compliance with rules and the prayer is appropriate then such a draft application is properly before the Court.

There is therefore no merit in all the preliminary issues raised . They are all dismissed. MERITS

In order for an application for condonation to succeed the Court is guided by a satisfactory explanation of issues which include the following as set out in Herbstein & van Winsen ‘s The Civil Practice of the Supreme Court of South Africa 4th ed by van Winsen , Cilliers &Loots :

the degree of non-compliance;

the explanation for it;

the prospects of success should the relief be granted;

the respondent’s interest in the finality of his judgment;

the convenience of the court; and the

avoidance of unnecessary delay in the administration of justice.

See also Kodzwa v Secretary for Health and Anor 1999(1)ZLR 315; Bessie Maheya v Independent Africa  Church SC58-07.

The applicant averred that his erstwhile representatives who were trade unionists did not perform their duties properly. As an example ,at page 16 of the record the representative noted an appeal in terms of the domestic remedies. However, there was no record of

proceedings but still the appeal was noted with the representative stating that: “ My appeal then lacks critical issues which I raised in the disciplinary hearing.” That was on in February 2020 (30/02/20 – clearly this is erroneous , February ends either on the 28th or the 29th ) .That appeal was dismissed. What is critical is that the applicant only got the determination from the 1st respondent in September 2023. Further the record of proceedings itself is not clear.

The presiding officer during those proceedings is also the same person defending the 1st respondent’s case before this Court. Mr Tsarwe submitted that there was no impartiality in view of the lack of clarity which appears in the record of proceedings.

In response Mr Vambe addressed the Court at length arguing that the applicant chose the trade unionists to represent him. He can not distance himself from their conduct and their sins should visit the applicant. Mr Vambe argued that it would be inappropriate for the Court to find in favour of the applicant where his own chosen representative led him the wrong way.

Should that happen proceeded Mr Vambe , there is nothing to stop the applicant from finding fault with any of his chosen representative(s), leading the applicant into continuing to abuse process and place blame on the representative(s).

I found Mr Vambe’s submission on the applicant’s complaint about his representatives and the fact that he cannot be allowed to benefit from their lack of diligence quite enticing.

However, when consideration is had to the fact that the applicant appeared before a disciplinary committee for a hearing in January 2020 and accepting the wrongs or failures of his chosen representatives, it took long for the 1st respondent to finally release the record of proceedings . It was only on 11th September 2023 that the ruling was released to the applicant. That ruling is dated 16 May 2023. The record of proceedings was not attached to that ruling. The record of proceedings is required in order for one to appeal or apply for a review with this Court- RR19, 20. There is no explanation as to why there was such a delay in giving the applicant both the decision and the record of proceedings even though the applicant in his founding affidavit shows that he made efforts to get the record in order for him to approach this Court.

A look at the record of proceedings leaves the reader wondering as to what exactly took place. This is both at the initial hearing and at appeal level. While it is trite that disciplinary proceedings at the workplace are not as rigorous as proceedings before a court of law, there is always found a simple recorded process which any reader can follow. In the present case, the record is not easy to follow. It is difficult to understand.  I therefore agree with Mr Tsarwe

that the record is very inarticulate. It appears to be fraught with irregularities. Perhaps given a chance, the 1st respondent will be able to explain what exactly took place during the said disciplinary proceedings.

In the result I find that the applicant has satisfactorily explained the delay. Under the circumstances it is not inordinate as he did not cause it. He has always been desirous of prosecuting his case to finality. On the merits ,he enjoys good prospects of success. The balance of convenience favours that the application be granted. The applicant has discharged the onus required of him on a balance of probabilities. The application succeeds.

In view of the foregoing it is ordered that:

The application for condonation and extension of time within which to file an application for review be and is hereby granted.

The applicant be and is hereby granted ten (10) days from the date of this order within which to file the application for review.

3.1st Respondent shall bear the costs of suit.

TADIWA AND ASSOCIATES, APPLICANT’S LEGAL PRACTITIONERS.