Marondera Rural District Council v Robert T B Mukosa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/114/16
HELD AT HARARE 11 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/114/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/114/16

HELD AT HARARE 11 FEBRUARY 2016			CASE NO LC/H/APP/961/15

& 4 MARCH 2016

In the matter between:

MARONDERA RURAL DISTRICT COUNCIL			Applicant

And

ROBERT T B MUKOSA						Respondent

Before The Honourable F C Maxwell, Judge

For Applicant			Mr R Wenyeve (Legal Practitioner)

For Respondent		Mr J B Chaka (Trade Unionist)

MAXWELL, J:

This is an application for condonation of late filing of an application for leave to appeal against a decision of this court as well as an application for extension of time within which to file the application for leave to appeal.

On 25 February 2015 I upheld a point in limine raised on behalf of respondent to the effect that applicant had not complied with rule 15 (2) of S.I. 59/2006.  I granted the appeal unopposed.  The appeal had been filed on 20 June 2014.  On 3 July 2014 a notice of response was filed with the court but was not served on respondent.  The notice of response served on respondent was filed on 18 February 2015, without condonation or leave of the court.  Rule 15 cited above requires a copy of the notice of response to be served first on the appellant before it is filed with the court.  On filing with the court, proof that service of the response was effected on the appellant is required.  The notice of response filed on 3 July 2014 did not comply with the rules.  The one filed on 18 February 2015 complied with the rules as far as service on the appellant is concerned, but was filed out of time. In my view the reason appellant had a second notice of response filed on 18 February 2015 was to comply with rule 19 (2) (a) (ii) which requires heads of argument to be filed  at the time the notice of response is filed if appellant is not represented by a legal practitioner.  Respondent’s heads of argument were accordingly filed on 18 February 2015.  Appellant filed heads of argument on 24 February 2015 in which he raised a point in limine that there is no proper notice of opposition before this court.  After hearing submissions from both parties, I upheld the point in limine and granted the appeal unopposed.  I gave my reasons in an ex tempore judgment.

On 4 March 2015 an order was handed down in open court.  The record indicates that the parties were notified by telephone of the handing down of the order.  On 6 July 2015 applicant’s legal practitioner wrote to the Registrar of this court requesting for reasons for the determination.  The reasons were handed down in open court on 16 July 2015.  Counsel for applicant states that a copy of the reason was collected from the Registrar on 20 July 2015.  On 6 August 2015 the present application was filed.

At the hearing of the matter counsel for applicant challenged the authority of respondent’s representative to represent him.  He stated that as it is common cause that respondent is no longer in the employ of any Rural District Council the mandate of the Zimbabwe Rural District Council Workers Union had ceased.  He argued that the union cannot be clothed with authority to represent a non-member.  Counsel referred to the case of National Air Workers Union & Another v Air Zimbabwe Holdings (Pvt) Ltd & Others SC 14/15.  Counsel further argued that the respondent successfully sought alternative employment in an undertaking or industry which is district from that of a rural district council.

In response, respondent’s representative stated that the purpose of the Labour Act [Chapter 28:01] is not to deprive former employees of representation.  He argued that the judgment of this court ordered the reinstatement of the respondent therefore for as long as the proceedings are continuing the jurisdiction cannot be questioned.

I dismissed the point in limine on the basis that when the matter started, respondent was employed by a rural district council.  It is illogical that a trade union which has nothing to do with rural district councils takes over the mandate of representing respondent, assuming he has secured alternative employment as stated for applicant.  I find the case cited by counsel for applicant distinguishable on the basis that the trade union in that matter instituted proceedings in its name.  In casu, the proceedings are being defended, not in the name of the trade union, but of the respondent.

For an application of this nature to succeed, applicant must reasonably explain his delay and show that there are good prospects of success on appeal.  See Paul Friendship v Cargo Carriers Ltd & Another SC 1/13, K M Auctions (Pvt) Ltd v Adenasash Samuel & Another SC 15/12.

The Reasons for the delay

Applicant’s counsel has concentrated on explaining the delay for the period between 4 March 2015, when the order was handed down, and 25 June 2015, when he alleged that applicant only became aware of the order upon its legal practitioners’ receipt of a letter from respondent with the order attached thereto.  He has not explained why, after collecting reasons for the order on 20 July 2015, the present application was only filed on 6 August 2015, thirteen days later.  As stated by this court in W K Dzimbiri & 9 Others v Haggie Rand LC/H/464/13, “condonation is an acceptance that I did not do what I was supposed to do within the stipulated time, whether it is out by 5, 10 or 15 days is not the point.”  Even  though the explanation for the delay prior to 25 June 2015 is not convincing, I gave applicant the benefit of doubt.  However it is trite that if a litigant does not seek condonation as soon as possible, he should give an acceptable explanation for the delay in seeking condonation.  See Sibanda v Ntini 2002 (1) ZLR 264 Highline Motor Sports & Hardware (1993) (Pvt) Ltd & Others v Zimbank SC 37/02.  In casu, applicant was obliged to explain why it took thirteen days to file the present application.  I find that no explanation has been tendered at all.  As stated in Paul Friendship case (supra) condonation is an indulgence granted at the discretion of the court.  I am not persuaded to grant the indulgence in this case.

Even though the above decision disposes of the matter, I will consider the prospects of success in this matter.

Prospects of success

The respondent’s intended grounds of appeal are set out in the draft filed as annexure F though it erroneously indicates that it will be in the Labour Court of Zimbabwe.  The first ground intends to criticise this court for concluding that applicant was barred for non-compliance with rule 15 (2) of the labour Court rules, 2006, because a notice of response was filed timeously.  Only the amended notice of response was filed out of time.  The notice of response filed timeously was not served on the respondent and more importantly, was not accompanied by heads of argument in compliance with rule 19 (2) (a) (ii).  Applicant would still be barred for non-compliance with the rules.  I therefore do not see any prospects of success on this ground.

The second ground of appeal criticises this court for concluding that no written application for condonation was filed when the rules of court allow a party to apply for condonation orally at any time before or during the hearing of a matter.  Counsel for applicant criticises the court for not having recourse to rule 26 of S.I. 59/06 to allow departure from the rules.  Respondent’s representative submitted that condonation should be denied where there is flagrant disregarded of the rules as stated in Kodzwa & Another v  Secretary for Health 1999 (1) ZLR 313.  I agree with respondent.  Flagrant disregard of the rules was demonstrated by applicant’s attitude.  In the reasons for the order which were handed down on 16 July 1015, the first is

“Respondent came to court with the knowledge that it was barred.  Nevertheless no written application for condonation was filed.”

For a party represented by a legal practitioner from the onset of the proceedings to file pleadings out of time and not seek condonation timeously is deplorable.   Assuming the notice of response filed on 3 July 2014 was valid, it was improper for counsel for applicant to file heads of argument on 18 February 2015, more than six months later, without seeking condonation.  Counsel had ample time to prepare a written application as the matter was only heard on the 25 February 2015.  Nothing has been placed before the court to explain why that was impossible and why counsel had to resort to an oral application.  In any event I stated in reasons for the order on number 3 that

“There are factual issues that are not attested to, there is no affidavit explaining the circumstances leading to the default.”

My reason is an exercise of discretion and I am not convinced that the appellate court will interfering with it.  The second intended ground of appeal therefore has no prospects of success.

The third ground of appeal in the draft notice criticises the court for not determining the matter on the merits.  This intended ground ignores the fact that rule 22 of S.I. 59/2006 gives the court the discretion to either enter default judgment or determine the matter.  I exercised my discretion and entered default judgment.  I am not convinced the appellate court will interfere with the exercise of that discretion especially considering that even if I had dealt with the matter on the merits it would still be a default judgment.  See Christopher Zvinavashe v Nobuhle Ndlovu SC 40/06.

The last ground of appeal on the draft notice criticises the court for failing to take cognizance that the appeal did not raise questions of law thus there was no proper appeal before it.  Applicant mistakenly places reliance on section 98 (10) of the Labour Act [Chapter 28:01] which requires an appeal from a decision of an arbitrator to be on a question of law.  It is common cause that the appeal in casu was against a determination of a disciplinary committee.  As such the appeal is governed by section 92 E of the said Act which allows the appeal to address the merits of the determination or decision appealed against.  This intended ground of appeal therefore also has no prospects of success.

For the above reasons the application fails.

Consequently it is ordered that the application for condonation of late filing of an application for leave to appeal and for an extension of time within which to file the application for leave to appeal be and is hereby dismissed with costs.

Warara & Associates, applicant’s legal practitioners