Primrose Simon & 26 Others v Minister of Public Service Labour & Social Welfare and Lobels Bread (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/767/2016
HARARE, 25 OCTOBER 2016 &
CASE NO LC/H/APP/722/2016
2 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/767/2016

HARARE, 25 OCTOBER 2016 &			  CASE NO LC/H/APP/722/2016

2 DECEMBER 2016

In the matter between

PRIMROSE SIMON & 26 OTHERS				APPLICANT

Versus

MINISTER OF PUBLIC SERVICE				1st RESPONDENT

LABOUR & SOCIAL WELFARE

And

LOBELS BREAD (PRIVATE) LIMITED				2nd RESPONDENT

Before the Honourable Maxwell J

For the Applicant	    G Maoneka (Trade Unionist)

No Appearance for the 1st Respondent

For the 2nd Respondent     A T Muza (Legal Practitioner)

MAXWELL J:

This is an application for condonation of late filing of an application for review. In April 2016 the second respondent embarked on a retrenchment exercise. The second respondent offered to pay the applicants the minimum retrenchment package in terms of section 12 (2) (c ) of the Labour Act [Chapter 28:01] as amended. In addition the second respondent also offered to pay other allowances over and above the statutory minimum retrenchment package. The applicants refused the offer. The second respondent proceeded with the retrenchment process in terms of the Labour Act. On 11 May 2016 the first respondent confirmed the retrenchment of the applicants. The applicants were obliged to challenge the first applicant’s decision within twenty-one days. They did not do so.

On 20 July 2016 the present application was filed. The applicants allege that the delay was a result of the late receipt of the confirmation letter. They also allege that they have prospects of success as the Secretary for the first respondent did not convene a retrenchment board meeting. They also allege that the Secretary for the first respondent had no authority to confirm the retrenchment.

In response the second respondent stated that the deponent to the founding affidavit did not have locus standi to represent the other twenty-six employees to these proceedings. On the merits the second respondent states that there is no basis for impugning the decision of the first respondent. The respondent also states that the applicants do no fully explain the delay as the period between 16 June and 20 July 2016 is not explained. The second respondent asserts that in terms of the procedure introduced by the Labour Amendment Act of 2015. There is no obligation on the first respondent to convene a retrenchment board meeting unless an exemption has been applied for. In casu no exemption was applied for therefore no obligation to call for a meeting of the board arose.

The objection by the second respondent was not pursued on the day of the hearing.

For an application of this nature to succeed the applicant must convince the court that there is a reasonable explanation of the reason for the non-compliance with the rules. He must also convince the court that there are reasonable prospects of success on the merits of the matter, among other things. See Forestry Commission v Moyo 1997 (1) ZLR 254.

As stated above, the decision of the first respondent was made on 11 May 2016 and the applicants had twenty-one days within which to file an application for review in terms of Rule 16 of S I 59/2006. They did not do so. In Sibanda v Ntini 2002 (1) ZLR 264 it was stated 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 also Highline Motor Spares & Hardware (1993) (Pvt) Ltd & Ors v Zimbank SC 37-02.

The founding affidavit states that the applicants were retrenched on 23 May 2016. They then attempted to file an application for review on 15 June 2016 but were advised that they were out of time by four days. When the applicants were retrenched on 23 May 2016 the days within which they could file an application for review had not expired. It was after more than two weeks later that they allege to have attempted to file the application for review. No evidence was placed before the court of that attempt. One would have expected proof in the form of Form LC 4 with attachments bearing the date 15 June 2016. The attached Form LC 4 has attachments dated 20 July 2016. I therefore find that there is no proof that the applicants approached the court on 15 June 2016 and were turned away. Having so found, there is therefore no explanation of the delay between 11 May 2016 and 20 July 2016. Even assuming that the applicants became aware of the confirmation on retrenchment, there is no explanation for the delay between 23 May 2016 and 20 July 2016.

As stated by counsel for the second respondent, condonation is not a mere formality. As stated in Chimpondah & Anor v Muvami 2007 (2) ZLR 326 an application for condonation is an application for excusing the negligence of the offending party. The applicant has to satisfy the court that there is good cause to excuse the negligence and grant the indulgence. In Tshivase Royal Council & Anor v Tshivhase & Anor 1992 (4) SA 852 NESTDTO JA stated that where there is no acceptable explanation for the non-compliance, the indulgence of condonation may be refused whatever the merits of the case are, even where the blame lies solely with the attorney. I am convinced that this is a mater in which it is not necessary to consider the merits of the matter. No acceptable explanation has been given for the delay in seeking condonation. The application therefore cannot succeed.

The second respondent asked for costs on the higher scale of attorney and client. I am not convinced that that is appropriate in this case. The applicants are represented by a trade unionist and the court is of the view that costs on an ordinary scale meet the justice of the case.

Consequently the following order is appropriate:

The application for condonation of late filing of an application for review be and is hereby dismissed with costs for lack of merit.

Mawere Sibanda Commercial Lawyers, 2nd Respondent’s legal practitioners