Onesimo Musi v Old Mutual Life Assurance Company Zimbabwe Ltd and The Old Mutual Group

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/461/2014
HARARE, 23 MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/461/2014

HARARE, 23 MAY 2014 &			  CASE NO LC/H/CON/05A/2014

18 JULY 2014

In the matter between:

ONESIMO MUSI								APPLICANT

Versus

OLD MUTUAL LIFE ASSURANCE COMPANY			RESPONDENT

ZIMBABWE LTD AND THE OLD MUTUAL GROUP

Before The Honourable BT Chivizhe	:	Judge

The Applicant in Person

For the Respondent  S V Hwacha  (Legal Practitioner)

CHIVIZHE J:

This matter was placed before me as an application for condonation of late noting of an appeal to this court.

The factual background to the matter is as follows:

The applicant was employed by the respondent as its General Manager under the Properties Division. The Division was later established into a company called Old Mutual Investment Group - Property Investments. In June 2010 the respondent sought permission from the Retrenchment Board to retrench the applicant. The Retrenchment Board granted authority. The applicant was aggrieved by the decision of the Retrenchment Board and referred a complaint to the labour officer. A certificate of no settlement having been then issued the matter was referred to compulsory arbitration under section 93 of the Labour Act [Cap 28:01]. The terms of reference were summarised to be as follows:

“1.	To determine the salary scale to be used in calculating the claimant’s retrenchment package.

2.	To determine the contractual benefits the claimant is entitled to.

3.	To determine the amount of unpaid earnings the claimant is entitled to.

4.	To determine the amount of terminal benefits the claimant is entitled to.

5.	Total retrenchment package the claimant is entitled to.”

The Arbitrator after considering submissions by both parties and analysing the evidence handed down an award in the following terms:

Claimant’s claim for a salary review post retrenchment is hereby dismissed for lack of merit.

Further, Claimant’s claim for bonus payment for the period 2008, 2009 and 2010 is dismissed for lack of merit.

Respondent is hereby ordered to give Claimant old vehicle at book value (zero value) and in line with Respondent’s Accounting policy on depreciation.

Claimant’s claim for a second vehicle is hereby dismissed.

Respondent is hereby ordered to issue Claimant with 2010 share certificate with not less than 4 759 shares (net) under the Capital Investment Trust Scheme.

Respondent is further ordered to pay Claimant terminal benefits as per terms of reference (4) findings by the Arbitrator above. This only applies in the event that any of the above terminal benefits payment is still outstanding.

Arbitration fees to be borne by both parties.

The Applicant is aggrieved with the arbitral award and intends to appeal against same. Because he is out of time (the award was handed down on 17 January, 2013) he has filed an application for condonation of late noting of an appeal.

On the date of hearing the respondent raised a point in limine which this court is enjoined to address initially. The point raised was that the application filed by the Applicant, being an application only for condonation without a request for extension of time was defective. Mr Hwacha undertook to file supplementary submissions on the point. The supplementary Heads of Argument were consequently filed on 20 June, 2014. The applicant through a filing on 30 June 2014 responded to the respondent supplementary submissions. I shall proceed to determine the point in limine.

The point in limine taken by the respondent is that the application filed by the applicant being only for condonation without a request for extension of time is fatally defective. The respondent placed reliance on section 26 of the Labour Court Rules, 2006 and also on Supreme Court decisions in Robert Dombodzvuku v CMED (Pvt) Ltd SC-31-12 and Sheckem Barrister Ngazimbi v Murowa Diamonds (Pvt) Ltd SC-27-2013.

The applicant in opposing the point submitted that the application is properly before the court. A purposive reading of section 26 of the Labour Court Rules, 2006 shows that the rule does not require that an application for condonation be accompanied by an application for extension of time within which to note an appeal.

I agree totally with the Applicant’s submission on the point. Section 26 (a) of the Labour Court Rules, provides as follows:

“26. Departures from rules

At any time before or during the hearing of a matter a President or the Court may-

Direct, authorise or condone a departure from any of these rules, including an extension of any period specified therein, where the President or Court is satisfied that the departure is required in the interests of justice, fairness and equity.

………”

It is clear from a reading of the section that the section does not explicitly state that an application for condonation has to be accompanied by an application for extension of time within which to note an appeal. This is clearly in contrast to the Supreme Court Rules which are essentially relied upon by the respondent where in section 6 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 the rules provide:

“6. Condonation of late noting of appeal

Save where it is expressly or by necessary implication prohibited by the enactment concerned, a judge may, if special circumstances are shown, extend the time laid down, whether by rule 5 or by the enactment concerned, for instituting an appeal.”

Section 6 of the Supreme Court Rules specifically provide that a judge may upon special circumstances been shown extend the time for noting an appeal. This necessarily implies that an application for extension of time has to be made to a judge showing special circumstances before the judge can extend his indulgence and grant an order for extension of time to institute an appeal.

Section 26 of the Labour Court Rules, 2006 on the other hand provides that the court can during the hearing of a matter condone a departure from any of its rules including an extension of any period specified therein. Clearly therefore there is no need for a special application for extension of time as required under the Supreme Court Rules. The court can consider granting the extension of time during the process of hearing of a matter including an application for condonation of late noting of appeal such as this one. It follows that the cases referred to by the respondent emanating from the Supreme Court which decision are based on the Supreme Court Rules are not of any persuasive authority. In the result the point in limine cannot stand. It is hereby dismissed.

In regards the application for condonation the test laid down for applications of this nature is for the court to consider:

The extent of the delay;

The reasonableness of the explanation for the delay

The prospects of success on appeal should the application be granted.

The possible prejudice to the respondent should the application be granted.

See for an example Kombayi v Berkhout 1988 (1) ZLR 53 (S).

In regards the first two requirements above the Applicant submitted that the delay was for about a year (twelve months). The reason tendered was that after the arbitration process was completed in January 2013 the Applicant had approached management with issues relates to the misconduct charges. He had been assured that an investigation into those issues would be undertaken. An investigation was conducted resulting in a report in May 2013. As the outcome was not in his favour he then noted an internal appeal. The appeal had taken up to December 2013 at which point having exhausted domestic remedies he then opted to note an appeal with the Labour Court. Because however the appeal was out of time he then filed the present application for condonation.

The respondent position was that the delay was inordinate and the explanation was unreasonable. It was the respondent’s view that the applicant could still have noted his appeal whilst the internal investigations were being undertaken. In any event the issues that were being investigated had nothing to do with issues now raised in the appeal.

The cumulative period of delay in noting the appeal is twelve months. There is no doubt that there has been an inordinate delay. The explanation tendered for the delay is also not plausible. The applicant being a self-actor may have genuinely believed that he ought to have allowed the investigations into the issues he had raised before he could pursue the appeal matter before the Labour Court. But from a perusal of the record the issues he raised for investigation were not in any way related to the issues in the award. The issues raised were based on allegations of tribalism, Applicant’s challenge to the recruitment process and whether the legal process was fair. I was however prepared to give the Applicant the benefit of the doubt on this aspect However in order for the application to succeed he would still need to establish clear prospects of success on appeal. I turn to address these.

The appeal has been noted on the following grounds of appeal:

24.1	The arbitrator grossly erred and misdirected himself on the facts which is grossly unreasonable such that no reasonable person applying his or her mind to the facts would arrive at the same decision and such misdirection amounting to a question of law with regards to bonus;

24.2	The arbitrator grossly erred and misdirected himself on the facts which is grossly unreasonable such that no reasonable person applying his or her mind to the facts would arrive at the same decision and such misdirection amounting to a question of law with regards to alteration of the applicant’s salary;

24.3	The arbitrator grossly erred in dismissing a claim for a second motor vehicle for the applicant; and

24.4	The arbitrator grossly erred and misdirected himself in dismissing the claim for shares made by the applicant.

In regards the first two grounds the applicant alleges gross misdirection on the facts on the part of the arbitrator in respect to the issues of bonus and salary. The arbitrator in his award concluded that the applicant’s claims for salary and bonus payments were not merited and he consequently dismissed both claims. The applicant in his appeal has not demonstrated clearly how the arbitrator grossly misdirected on both bonus and salary. The third or fourth grounds also do not indicate in what form the arbitrator committed errors of law in respect to the claim for the shares options and the second vehicle. The arbitrator in his award had found that the issue of the second vehicle was outside his mandate as the issue had not been placed before the Retrenchment Board. I can find no fault in that finding. In regards shares the arbitrator found that there had been no formal offer to the applicant to join the employee share participation scheme. The applicant has in his appeal failed to indicate how the arbitrator committed fatal errors of law in regards share issue. In view of the above I am satisfied that there are no prospects of success on appeal.

In the result the application for condonation for the late noting of appeal is dismissed with no order as to costs.

Dube, Manikai & Hwacha applicant’s legal practitioners