Paul De Haast v Clever Rukanda

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/766/2016
HARARE, 3 NOVEMBER 2016 &
CASE NO LC/H/APP/763/2016
2 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/766/2016

HARARE, 3 NOVEMBER 2016 &				CASE NO LC/H/APP/763/2016

2 DECEMBER 2016

In the matter between

PAUL DE HAAST							      APPLICANT

Versus

CLEVER RUKANDA						     RESPONDENT

Before the Honourable Maxwell J

For the Applicant	Ms E Nyakudya (Legal Practitioner)

For the Respondent     C Rungwandi (Legal Practitioner)

MAXWELL J:

This is an application for condonation of late noting of an appeal.

The respondent was employed as a security guard. He was dismissed from employment. He approached the Ministry of Labour alleging non-payment of terminal benefits. The matter was not settled at conciliation. On 14 April 2014 the applicant received a notification to attend arbitration proceedings on 9 May 2014. On 9 May 2014 the applicant did not attend the arbitration proceedings as he had left for South Africa before that date. The arbitrator found in favour of the respondent.

On 28 November 2015 the applicant filed an application for condonation of late filing of an application for rescission of judgment/arbitral award. The application was dismissed on 10 June 2016.

The applicant contends that he became aware of the judgment on 30 June 2016. The present application was however filed on 1 August 2016. The applicant states that he was in South Africa from 11 July 2010 to 30 July 2015. He asserts that where it not for the fact that he was in South Africa he would have noted the appeal within time.

On the merits the applicant contends that the arbitrator erred in concluding that he was in wilful default when he was on the mistaken belief that since he was not the respondent’s employer there was no need of attending any of the proceedings.

The respondent stated that the applicant has not given any reasonable explanation for not filing the appeal timeously. The respondent further stated that by his own admission the applicant became aware of the award on 30 June 2016. And also that he was further reminded by letter dated 19 July 2016 by Messrs Matsika legal practitioners but failed to act on the award. The respondent also states that the applicant was legally represented and no explanation was given as to why the legal practitioners did not note the appeal on his behalf. The respondent points out that there is no proof that the applicant was in South Africa between 11 July 2016 and 30 July 2016 as alleged. On the merits, the respondent stated that at conciliation stage the applicant agreed to the adoption of terms of reference which gave him liability for claims and therefore he cannot say he was not the employer and therefore saw no need to attend.

An application for condonation is an application for excusing the negligence of the offending party. Condonation should not be granted for the mere asking. The applicant must satisfy the court that there is good cause to excuse the negligence and grant the indulgence. See Chimpondah  Anor  v Muvami 2007 (2) ZLR 326. Both parties are alive to the factors to be taken into consideration. These include the length of the delay, the explanation thereof, the prospects of success on the merits of the matter and prejudice to the other party should the application be granted. See Forestry Commission v Moyo 1997 (1) ZLR 254 and Bishi v Secretary for Education 1989 (2) ZLR 240.

Counsel for the applicant did not make any oral submissions except to respond to submissions by counsel for the respondent. In heads of argument for the applicant it is stated that the delay is only for one day. This is on the basis that the applicant alleges that he came from South Africa on 30 July 2016 and the application was filed on 1 August 2016. The applicant did not explain when his legal practitioners became aware of the award. The respondent submitted that as the applicant was represented the legal practitioners ought to have filed the appeal on time. There was no response to that submission.

There was an indication that the applicant did not prove that he was in South Africa as he alleges. As that submission was made in the opposing affidavit filed on 24 August 2016, one would have expected the applicant to seek the leave of the court to produce the required evidence. No such request was made. It is trite that he who makes a positive assertion bears the onus of proving it, especially where the assertion is challenged. See UZ v Mutasa & Ors SC 57-1993. The applicant has not bothered to discharge the onus that was upon him to prove that he was out of the country as he alleged.

The respondent stated in response that the applicant by his own admission became aware of the award on 30 June 2016. The delay therefore is not only one day. There was need for the applicant to be candid with the court and explain what happened between 30 June 2016 and 1 August 2016. In his affidavit he states that he was in South Africa from 11 July 2016. He does not explain what happened between 30 June 2016 and 11 July 2016. When specifically confronted about that fact at the hearing, counsel for the applicant did not have any meaningful submissions to make except to state that they were waiting for instructions. There was no explanation of why the instructions could not be given soon after the applicant became aware of the award on 30 June 2016. The words of NESTDTO JA in Tshivase Royal Council & Anor v Tshivhase  Anor 1992 (4) SA 852 are apposite. At p 859 he had this to say about an application for condonation:

“This court has often said that in cases of flagrant breaches of the Rules, especially where there is no acceptable explanation thereof, the indulgence of condonation may be refused whatever the merits of the appeal are; this applies even when the blame lies solely with the attorney."

On the merits of the matter, I am persuaded by Counsel for the respondent’s submission that the applicant is pleading factual issues and is not mentioning any points of law. It therefore follows that the intended appeal is not in compliance with section 98 (10) of the Labour Act [Chapter 28:01] which governs appeals from arbitral awards. Counsel for the applicant did not dispute that the intended appeal is not in compliance with section 98 (10) of the Labour Act [Chapter 28:01].

In my view this is a case in which the cardinal principle of our law that there must be finality to litigation applies. The court must not prolong the litigation between the parties by granting condonation of late noting of an appeal against a decision by the arbitrator refusing to grant condonation of late filing of an application for rescission of judgment given in default. The applicant has not demonstrated that he is serious with litigation from the onset. I find no basis for granting an indulgence in his favour. The following order is therefore appropriate:

The application for condonation of late noting of appeal be and is hereby dismissed with costs.

Kuruneri Law Practice, applicant’s legal practitioners

Matsika Legal Practitioners, respondent’s legal practitioners