Sidney Zikuzo Gata v Grace T. Parakokwa N.O. and ZESA Holdings (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/266/2020
HARARE, 19 OCTOBER, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/266/2020

HARARE, 19 OCTOBER, 2020		     	     CASE NO. LC/H/APP/926/18

AND 20 NOVEMBER, 2020

In the matter between:-

SIDNEY ZIKUZO GATA							Applicant

AND

GRACE T. PARAKOKWA N.O

(LABOUR OFFICER							1st Respondent

ZESA HOLDINGS (PRIVATE) LIMITED				2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant:			Mr M. Moto (Manokore Attorneys)

1st Respondent:			No appearance

For 2nd Respondent:			Mr D. Muunganirwa (Sinyoro & Partners)

HOVE J:

This is an application for condonation of late noting of a review application. The decision being sought to be brought for review was brought to the applicant’s attention on 1 February 2018.

Briefly, the background to this matter is as follows;

The applicant was employed by the 2nd respondent as its Chief Executive Officer. The 2nd respondent abolished the applicant’s position in June 2006 and the parties negotiated and agreed on a termination package on 25 January 2015.

A dispute arose between the 2nd respondent and the applicant and it was referred to a Labour Officer (the 1st respondent) for determination. The applicant alleged that he had not been paid his full package as per the agreement between himself and the 2nd respondent.

The applicant alleges that the decision of the Labour Officer was availed to him on 1 February 2018. The decision itself is dated 19 January 2018.

The 1st respondent ruled that the dispute between the parties had prescribed.  In terms of rule 20 (1) of the Labour Court Rules, 2017 (the Rules), the applicant ought to have filed its application for review within 21 days from the date when the proceedings were concluded. Having failed to observe the prescribed time limits the appellant filed this application for the late noting of its application for review.

The issues that should be considered in applications of this nature have been set out in a plethora of cases. In the case of Bessie Maheya v Independent Africa Church SC 58/07 the Court stated that;

“In considering applications for condonation of non-compliance with its rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: The degree of non-compliance; the explanation therefore; prospects of success on appeal; the importance of the case; the respondent’s interest in the finality of the Judgment; the convenience of the court and the avoidance of unnecessary delays in the administration of justice”

In Mambo v National Railways & Anor HH 4/03, the court had this to say;

“Where a party wishes to have a decision made by somebody reviewed and set aside, that must be done expeditiously. The longer the period that a decision remains unchallenged, the more difficult it is to restore the status quo ante”

It is therefore an important consideration to consider the length of the delay and reasons for the delay.

In casu, the applicant ought to have filed their application for review within 21 days from 19 January 2018. The applicant did not act until 22 November 2018, a period of about 10 months. This delay is inordinate. Even if one was to be generous and say he had to act within 21 days of the 1 February 2018 when he became aware of the decision, the delay would still be inordinate. In the Mambo case supra, the honourable Court stated that;

“In my view, where the delay in filing a review application exceeds 6 months, the Court should refuse to condone the late filing unless there are very compelling reasons”.

This delay of 10 months is therefore clearly inordinate.

Reasons for delay

The applicant submitted that he initially requested the Labour Officer (1st respondent) to apply for the confirmation of her ruling to the Labour Court. This has not been done. Then it came to his attention that the Supreme Court had dismissed the case of John Shumba and 599 others v Elvis Machikiti and Delta Beverages (Pvt) Ltd SC 606/17 on the basis that the application for registration of a Labour Officer’s ruling was not properly before it. Further to this development, he also leant that the Labour Court had also held that an application for confirmation in a matter where the labour Officer had dismissed the claims was improperly before the Labour Court and struck the matter off the Roll.

The Court is said to have then advised that a review application should have been filed. It is then that he decided to file the application for review on the advice of his lawyers. The reason for the delay is thus stated as follows;

“I aver that it is clear that I was not in willful default in filing my application for review. It is only upon attending Court on 3rd October 2018 that my legal practitioners of record became aware of the directive that where an appellant’s claim is dismissed by the Labour Officer, the Labour Officer must not file an application for registration of any award as “there is nothing to register”.

The applicant submitted that under the circumstances, the delay was not ordinate. The issue to be decided is whether or not this reason for the delay is reasonable.

The reason why the applicant did not act is that he was uncertain as to the procedure to be followed. He waited until developments in the Courts indicated that the way to go was in making an application for review. Is it reasonable for a litigant to behave in this way?. I do not think it is reasonable. He was not involved in the litigations that resulted in the interpretation of section 93 of the Labour Act [Chapter 28:01] (the Act). The cases of John Shumba (supra) and Mercy Mutoro v City of Harare case No. LC/H/LRA/94/18 were different cases from his own. The parties in those cases could have decided to settle or to withdraw the cases what then would the applicant have done?. A litigant cannot wait to see how a legal position unfolds before complying with peremptory provisions of the law. I do not believe that this is a good reason for inaction and failure to comply with peremptory provisions of the rules. If litigants were to wait until the law was certain, it would create total chaos in the observance of rules of court.

Prospects of success

The applicant’s initial grounds for review are basically challenging the finding that the case had prescribed.

The Labour Officer’s finding that the case had prescribed was based on the fact that when the applicant’s post was abolished, he was paid in full in 2009. The applicant was not happy with the payments and instead of challenging the payment decided to engage government ministers to resolve the dispute and only approached the 1st respondent in 2016. The 1st respondent argued that engaging government ministers to resolve the dispute did not interrupt the running of prescription. He made reference to section 94 of the Act which provides that no Labour Officer shall entertain any dispute or unfair labour practice unless;

It is referred to him or her

Has otherwise came to his attention within 2 years from the date when the dispute or unfair Labour Practice first arose.

The dispute arose when the applicant was paid less than what had been agreed upon that is in 2009. The two years started running then. Whatever other endevours the applicant did, ought not to have him take off his eyes off the ticking clock. He did himself a disservice when he only decided to challenge the package in 2016 about 7 years later.

I am not persuaded that the applicant has good prospects of success. Especially when the Labour Officer made a finding that the dispute was not a continuing unfair labour practice. When the 2nd respondent paid out the package, the relationship between the parties ceased and nothing was continuing. The submissions on the prospects of success on the allegation that the 1st respondent grossly misdirected himself on the facts and the law and come to the wrong conclusion that the matter has prescribed has not been addressed in the applicant’s heads. The applicant seems to be addressing the merits of the dispute when the 1st respondent made a finding that the matter had prescribed and did not go into the merits. It is the merits of the application for review that are relevant at this juncture. The applicant ought to have addressed the merits of his grounds for review. He has failed to do so.

The applicant further alleges that the 1st respondent erred in disregarding the agreement between himself and 2nd respondent that the matter be decided on the merits, when preliminary issues are raised. They must be considered by the presiding Judicial Officer before her or she can decide on the merits. An agreement to disregard preliminary issues is an unlawful agreement. See the case of Halwick Investments t/a Whelson Transport v Nyamwanza SC 48/09.

The agreement is denied but even if it was not, the 1st respondent would be within his rights to disregard it. The Court cannot ignore issues that have been raised before it. The case of Heywood v Farao Zakeo SC 32/13 also make the position that it is incumbent upon a court before which an interlocutory issue is taken, to not proceed to determine a matter on the merits without first determining the interlocutory issues raised.

The 1st respondent did not misdirect himself in deciding on the preliminary issue and the applicant has no prospects of success in this regard.

The 1st respondent also addressed the issue of several meetings that had been conducted between the 2nd respondent and the applicant. He said these did not interrupt prescription. Nothing had been argued to show that prescription was infact interrupted.

The applicant has poor prospects of success.

Balance of convenience

The balance of convenience favours the 2nd respondent in casu. The 2nd respondent laid off the applicant in 2006 paid him the exit package in 2009. It should be allowed to put the claim to rest. The 2nd respondent cannot be expected to keep the matter alive when the applicant himself was not diligent in failing to protect his interests by acting within the prescribed time limits.

The court thus finds that the applicant has no good prospects of success on the merits of the review application, that the explanation tendered is not a reasonable one, that the balance of convenience favours the 2nd respondent in this case and it is also in the interest of justice that there be no unnecessary delays in the the administration of justice.

Having found thus, the application for condonation cannot succeed. It becomes unnecessary to consider the proposed amendments to the grounds for review.

Accordingly, the application is dismissed with costs.

Manokore Attorneys		-	Applicant’s Legal Practitioners

Sinyoro & Partners 		- 	2nd Respondent’s Legal Practitioners