Thetford Estate (Pvt) Ltd v Onisimo Magaisa & 8 Others

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/180/23
HELD AT HARARE 23RD MAY 2023 AND
CASE NO LC/H/113/23
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/180/23

HELD AT HARARE 23RD MAY 2023 AND

CASE NO LC/H/113/23

30TH JUNE, 2023

In the matter between

THETFORD ESTATE (PVT) LTD

APPLICANT

And

ONISIMO MAGAISA

1ST RESPONDENT

STEPHEN MUKWEPI

2ND RESPONDENT

DICKSON MABHENA

3RD RESPONDENT

MUTIZWA MANDAZA

4TH RESPONDENT

TINASHE MANYIKA

5TH RESPONDENT

NAISON ANDERSON

6TH RESPONDENT

CAIN CHAZAWARI

7TH RESPONDENT

JULIAS JAMWANGA

8TH RESPONDENT

K MURENJE N. O.

9TH RESPONDENT

BEFORE THE HONOURABLE MAKAMURE J

For the Applicant : Advocate K Kachambwa


For the $1^{st}$ to $8^{th}$ Respondents : Mr K Masasire (Legal Practitioner)

For the $9^{th}$ Respondent : No Appearance

MAKAMURE J.

Introduction

This is an application for condonation of late application for review and extension of time within which to file the application. It is opposed.

It is a trite position that in order for an application for condonation to succeed, the following factors must be sufficiently explained.

a) the delay;
b) the extent of the delay and the reasonableness of the explanation;
c) the prospects of success on the merits should the application be granted;
d) the interests of the party in having the matter finalized;
e) the convenience of the court.

See Stephen Kutiwa v ZIMPOST SC85/05.

In terms Rule 20(1) of the Rules of this Court S.I. 150/2017, a person who wishes to apply for review 'shall, within twenty-one days from the date when the proceedings are concluded…' commence the process through the office of the Registrar. That did not happen in the present case. The extent of the delay is in excess of three months. The explanation is found in the founding affidavit deposed to on behalf of the applicant by one David Douglas Jackson (Jackson). This is summarized below.

The facts

On 20 January 2023 the applicant received a summons from Mlotshwa Solicitors, another law firm, showing that the $1^{st}$ to the $8^{th}$ respondents were claiming outstanding salaries against it in the sum of USD$20,000.00 at the High Court. This according to Jackson was the first time that the applicant became aware of the matter. Following receipt of the summons the applicant became aware that a Designated agent, the \(9^{\text{th}}\) respondent, had made a determination against it on the \(20^{\text{th}}\) of October 2022. This means that in terms of the Rules an application for review against the determination by the \(9^{\text{th}}\) respondent should have been made by the \(18^{\text{th}}\) of November 2022. The applicant denies the existence of any contractual or employment relationship between itself and the eight respondents and therefore denies owing them any outstanding salaries. Further the applicant avers that it vacated Thetford Estate on \(31^{\text{st}}\) December 2020 after the farm had been allocated to one Gavin Bredenkamp. An offer letter to that effect is filed of record. The applicant denies ever being informed about a hearing which was conducted by the \(9^{\text{th}}\) respondent. It denies ever instructing Mlotshwa Solicitors to appear on its behalf before the \(9^{\text{th}}\) respondent. It is further averred on behalf of the applicant that it wrote Mlotshwa Solicitors, seeking an explanation regarding Mlotshwa Solicitors’ appearance before the Designated Agent without a mandate from the applicant to do so but the said legal practitioners did not respond to their enquiry. It was further averred on behalf of the applicant that as soon as it became aware of the position it approached this court for relief within a period of less than a month. The applicant is therefore applying for condonation in order to file an application for review against the determination made by the \(9^{\text{th}}\) respondent. This, the applicant states, will prevent it from suffering serious financial prejudice. The applicant avers, among other things, that there were gross irregularities in that it was never served with the claim in question and in the decision in that it never employed the \(1^{\text{st}}\) to the \(8^{\text{th}}\) respondents.

**Submissions on behalf of the Applicant**

In his address to the Court Mr Kachambwa who appeared on behalf of the applicant, in addition to what appears in the heads of argument and the papers, argued that the requirements for condonation must be considered cumulatively. He argued that while the application ought to have been file by the \(18^{\text{th}}\) of November 2022 which would have been within the twenty-one period from the date of the decision as required by the Rules, the applicant took steps and filed the present application on the \(3^{\text{rd}}\) of February 2023, that is within a month from \(20^{\text{th}}\) January 2023. The delay under the circumstances was not inordinate. Further the explanation, as indicated in Jackson’s affidavit, is reasonable. Further still it was Mr Kachambwa’s submission that there is no suggestion that the respondents will suffer prejudice if the application is granted. On the prospects of success Mr Kachambwa argued that the applicant has got an arguable case. Mr Kachambwa further argued that firstly, there was gross irregularity in the proceedings before the Designated Agent. Secondly, he argued that there was irregularity in the decision and thirdly he argued that the Designate Agent dealt with a matter where he had no jurisdiction. For these reasons it was Mr Kachambwa’s submission that there were prospects of success and consequently the application for condonation should be granted.

The following are some of the authorities relied upon in support of the application. Sv Gumbura SC 78/2014; 1.Folly Cornishe (Private) Limited 2 John Hamphreys v Shingirayi Tapomwa and Five Others SC 26/14; Stuttafords Removals v Nyamazunzu SC 40/20; ZIMASCO (PRIVATE) LIMITED v Maynard Farai Marikano SC6/2014; Dube v Premier SC73/2019; Mugari v Machiri 1987 (1)ZLR 164 (SC).

**Submissions on behalf of the Respondents**

The first respondent deposed to an affidavit in opposition. The 2nd to the 8th respondents associated themselves with what was stated in that affidavit. In response to the claim, the 1st to 8th respondents (the respondents) averred that summons were not served by another firm of legal practitioners but by the Sheriff of the High Court. They further averred that the applicant has always been aware of the matter and that during the proceedings before the Designated Agent the applicant was represented by Mlotshwa Solicitors. In view of their position, the respondents averred that there is no basis for either an application for condonation or review. They further averred that there was no irregularity on part of the Designated Agent at all. The respondents further averred that there was an employer and employee relationship between them and the applicant and that their contractual agreements were verbal. They asserted that they worked for the applicant for a long time. In view of the assertion that there existed a contractual relationship between them and the applicant, they averred that the applicant will not suffer any financial prejudice because it is obliged to pay the respondents for services that were rendered.

In his address before the Court Mr Masasire who appeared on behalf of the respondents vehemently opposed the application. In addition to the heads of argument and the papers, he argued that there was no satisfactory explanation for the delay. In his address he questioned the assertion that the applicant got knowledge of the matter through Mlotshwa Solicitors. He asserted the possibility of connivance between Mlotshwa Solicitors and the applicant's legal practitioners of record, Ahmed and Ziyambi to the detriment of the respondents. Mr Masasire argued that there was no gross irregularity at all on the part of the Designated Agent. He argued that the question of jurisdiction being raised is misplaced with the result that the authorities cited in support of the issue of the Designated Agent's jurisdiction are under the circumstances irrelevant. Mr Masasire argued that the respondents were employees of the applicant and further that the fact that the farm was offered to another party does not assist the applicant's case in any way since the applicant is still running the farm. Mr Masaire submitted that the applicant has filed this application only for purposes of delaying finality of the matter. Mr Masasire made reference to another matter involving the applicant and other different parties to bolster the assertion that Mlotshwa Solicitors have always represented the applicant. The following are some of the cases relied on in support of the respondents' case. Forestry Commission v Moyo 1997(1) ZLR 254 (S); Maheya v Independent African Church SC58/07; Muhlwa v Alpha Media Holdings (Pvt) Ltd HB 117/22; Viking Woodwork (Pvt) Ltd V Blue Bells Enterprises (Pvt) LTD 1998(2) ZLR 249.

In response Mr Kachambwa objected to the reference of another matter involving the applicant saying that, that was leading evidence from the bar. I agree with Mr Kachambwa on this aspect. What Mr Masasire sought to do was tantamount to leading evidence from the bar. In any event, argued Mr Kachambwa, Mlotshwa Solicitors represented Bredenkamp and not the applicant. Mr Kachambwa insisted that there was a reasonable explanation for the delay. He further submitted that the question of jurisdiction had to be resolved against the Designated Agent.

The law


In Rinos Terra v George Lentaigne Ingram Lock and Three Others SC93/21 the Supreme Court stated that it is trite that where a litigant has fallen foul of the rules of court they ought to apply for condonation without delay. The applicant is required to give an acceptable explanation for the failure to comply with the rules and delay in approaching the court. The Supreme Court further stated that the applicant must be candid with the court in their explanation in order to satisfy the court that the explanation is reasonable and deserves the empathy of the court and that there are prospects of success on appeal should the indulgence be granted. See also Viking Woodwork (Private) Limited v Blue Bells Enterprises (Private) Limited 1998 (2) ZLR 249 (S); Jaison Kokerai Machaya v Lamech Nkiwane Muyambi SC4/05; Kodzwa v Secretary for Health & Anor 1999(1) ZLR 313.

In Stuttafords Removals v Nyamazunzu SC 40/20 the Supreme Court quoted with approval the case of Ngirazi v Saurosi & Anor HB 84-16 where it was stated that the court in considering condonation weighs factors one against another. The following was stated:

‘It is settled in this jurisdiction that where the explanation for the delay is unsatisfactory then the prospects of success of the appeal must really be great before the court can exercise its discretion to condone the non-compliance. As stated by BEADLE CJ... the more unsatisfactory the explanation for the delay, so much greater must be the prospects of success of the appeal be, before the delay will be condoned and the converse must of course be equally true, the more satisfactory are the explanations for the delay, the more easily will the court be inclined to condone the delay provided it thinks there is prospects of the appeal succeeding.’

Analysis

It is clear that this is a hotly contested application. What I find intriguing in this matter is that the applicant says it got to know about this matter through another firm of legal practitioners. I am not sure how candid the applicant has been in this respect. I find that the Court cannot find an answer to this issue without delving into the merits of the case. Further the respondents have brought in the question of the contractual agreements between themselves and the applicant being verbal and them having worked for the applicant for ‘a long time’. That can only be ascertained if parties are given a chance to ventilate the merits of the case. I do have reservations on the issue raised regarding the jurisdiction of the designated agent but I am unable to express them simply because what is before me is whether or not there is sufficient cause for the merits to be considered. What this means is that the applicant has got and arguable case.

**Conclusion**

As indicated above the applicant has got an arguable case even though the explanation for the delay may not be totally convincing. Having weighed the factors one against the other, it is my considered view that the application should be granted.

In view of the foregoing, it is accordingly ordered that:

1. The application for Condonation for non-compliance with the rules and for extension of time to file an application for review be and is hereby granted.

2. The Applicant is granted five (5) days from the date of receipt of this Order within which to file the Application for Review.

3. The costs shall be costs in the cause.

**AHMED AND ZIYAMBI, APPLICANT’S LEGAL PRACTITIONERS.**

**MASASIRE LAW CHAMBERS, RESPONDENTS’ LEGAL PRACTITIONERS.**


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