Tapiwa Simango & Elisha Mhaka v Agway Mining (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/527/16
HELD AT HARARE ON 1st JUNE, 2016
CASE NO. LC/H/APP/43/16
JUDGMENT NO. LC/H/527/16
---------




IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/527/16

HELD AT HARARE ON 1st JUNE, 2016 	    CASE NO. LC/H/APP/43/16

AND 9TH SEPTEMBER, 2016			    X REF: LC/H/121/15

In the matter between:-

TAPIWA SIMANGO 							1st Applicant

ELISHA MHAKA								2nd Applicant

And

AGWAY MINING (PRIVATE) LIMITED				Respondent

Before the Honourable Mhuri, J.

For Applicants	:	Mr N Magumise (Legal Practitioner)

For Respondent	:	Mr E. Jera (Legal Practitioner)

MHURI J.

This is an application for condonation of late filing of a notice of response by the Applicants to an appeal filed by the Respondent.

Respondent filed an appeal on the 11th February, 2015 against an arbitral award pitting itself and the Applicants.  The appeal was served on the Applicants on the 5th March, 2015.  In terms of Rule 15 sub-rule (2) of this Court’s Rules Statutory Instrument 59 of 2006 Applicants were obliged to file their response within 14 days of date of service.

It is common cause that they did not comply with this Rule hence this application.  The application is opposed by Respondent.

In the heads of argument, Applicants raised a point in limine to the effect that Respondent’s papers are improperly before the Court as the affidavit deposed to by a Mr. O. Moyo was defective as he did not tender any proof in the form of a company resolution, authorising him to act on behalf of the company (Respondent).  After hearing Applicant’s representative on this issue, I directed that he proceeds to make submissions on the merits of his application.

Whilst a company resolution is required where one is acting on behalf of the company, I do not find the absence of it, to be such a fatal irregularity as to render Respondent’s papers defective.  Filed, of record is Respondent’s notice of response to the application properly filed in form LC 3 as required by the Rules.  Respondent however then filed an affidavit deposed to by its Managing Director, Mr. O. Moyo expanding on the response earlier filed.

In his affidavit, Mr. Moyo stated he was duly authorised to depose the affidavit on behalf of the Respondent.

Even if it were to be found that the company resolution was an absolute necessity, its absence in my view would only go to affect the affidavit and not the response filed by Respondent in form LC3.

The point in limine therefore cannot be upheld.

As earlier stated, Respondent’s appeal to which Applicants were supposed to respond, was filed and served on Applicants on the 11th February, 2015.  Applicants only filed this application for condonation on the 18th January, 2016.

This was a delay of almost 12 months.  This in my view is a very inordinate delay.  This is conceded by the Applicants in paragraph 2(ii) of their Heads of Argument.

Applicants’ explanation for the delay is contained in 1st Applicant’s founding affidavit.  He states under paragraph 6 therein, that:

After Respondent had filed his appeal on the 11th February, 2015 he discovered that the Arbitrator had issued two (2) awards.

His legal practitioner then wrote a letter to the Arbitrator enquiring as to which was the real award.

When he was awaiting the Arbitrator’s response, he ran out of time to file his response to the appeal.

He made an application for condonation, which was dismissed by the court for procedural impropriety.

The Legal Practitioner who was dealing with his matter briefly left the establishment for some studies as a result his file was left hanging.

When he enquired about his file, he learnt that it had been misplaced.

It was in January, 2016 that his file was located and another legal practitioner was then dealing with it.

I find the Applicants explanation totally unsatisfactory for the following reasons:

Applicants had 14 days from the 5th March, 2015 to file the response that is by the 25th March, 2015.

The letter alluded to by Applicants written by their legal practitioner to the Arbitrator is date 14th May, 2015.

This letter was written well after the 25th March and by then Applicants were already out of time.

There was no explanation for the delay between the 25th March, to the 14th May, 2015.

It is not correct to say that Applicants made an application for condonation of late filing of notice of response which application was dismissed by the Court.

Instead Applicants filed an application for condonation of late filing of a cross-appeal which is the application that was dismissed by the court.

In that respect Applicants are not being candid with the Court.  Further Applicants did not file an affidavit from their erstwhile legal practitioner to support their averments.

I agree with Respondent’s submission that applicants only filed this current application after their application on the cross-appeal had been dismissed by the Court.

In view of the above I find that Applicants have failed to pass the first two hurdles.  I find it not necessary to proceed to determine whether Applicants have bright prospects of success.

Further I do not accept Applicants’ submission that Respondent also contributed to the delay of the hearing of the main appeal.  Rule 21 enjoins the Registrar not the litigant to set down the matter for hearing.

Having found that the delay was too inordinate, the explanation where it is given, is totally unsatisfactory, the Applicants cannot be given the indulgence that they are seeking.

To that end therefore it is ordered that:

The application for condonation of late filing of notice of response be and is hereby dismissed with costs.

The Registrar is directed to set down the appeal which shall proceed in terms of Rule 22(b) of the Rules.

LEGAL AID DIRECTORATE – Applicants’ legal practitioners

MOYO & JERA – Respondent’s legal practitioners