Vhuso Chisoro v Zimbabwe Energy Regulatory

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/196/2023
HARARE 17 NOVEMBER 2022 AND 7
JULY 2023
VHUSO CHISORO
APPLICANT
CASE NO LC/H/597/22
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/196/2023

HARARE 17 NOVEMBER 2022 AND 7
CASE NO LC/H/597/22
JULY 2023

VHUSO CHISORO
APPLICANT

AND

ZIMBABWE ENERGY REGULATORY
RESPONDENT

Before the Honourable Chivizhe Judge:

For Applicant Adv. G.R.J. Sithole

For Respondent Mr A. Moyo with Mr G. Sithole (Legal Practitioner)

CHIVIZHE, J:

This is an application for condonation and extension of time to note an appeal. The applicant intends, in the event of this application succeeding, to note an appeal against determination handed down by the Respondent’s Appeal Officer which determination was handed down on 18 July, 2016.

BACKGROUND FACTS

This matter has a long and chequered history in this court. It behoves the court to outline in some detail that history which has also been aptly captured in the Respondent’s Opposing Affidavit.

The Applicant was employed by the Respondent as a driver until June 2016 when he was dismissed from employment. This was following a disciplinary process convened in terms of Statutory Instrument 15 of 2006. The Applicant was facing charges arising from allegations that he had pre-warned illegal fuel dealers of the impending spot-checks or inspections by the Respondent’s officials thus by doing he was frustrating his employer’s regulatory role. The Applicant was found guilty of the charges. His initial appeal to the Respondent’s Appeals Officer was dismissed for lack of merit on 18 July 2016.


It is at this juncture the matter went off on a tangent as the court will proceed to show. The Applicant being aggrieved by the Appeals Officer’s determination appealed to the Labour Officer. The Labour Officer through a draft ruling issued on 3 February 2017 upheld the appeals officer’s determination. The Labour Officer thereafter applied to this court to have the draft ruling confirmed in terms of the provisions under Section 93(5a)(5b) of the Labour Act [Cap 28:01].

On 16th of June 2017, this court, per Honourable Muzofa J, under case reference LC/H/LRA/77/17 confirmed the Labour Officer’s draft ruling. At around the same time the Applicant also applied for condonation for late filing of a review of the Labour Officer’s draft ruling. In his judgment, reference LC/H/508/2015, Honourable Murasi J struck off the roll the application as being improperly before the court. This was in view of the Muzofa J decision which was still extant at the time. Aggrieved by the Muzofa J judgment the applicant appealed to the Supreme Court in case number reference SC 197/17. The Supreme Court took the view that the labour court had no jurisdiction to have heard the matter. This position was informed by the decision in the matter of Drum City (Pvt) Ltd vs Brenda Garudzo SC 57/18. The Supreme Court accordingly set aside the Muzofa judgement and replaced it with an order striking off the matter from the roll. It is important to note however that the Supreme Court, in their order dated 21 October 2019, did not also set aside the labour Officer’s ruling.

The Applicant, undeterred by the order by the Supreme Court, approached this court again. This time with an application for condonation for late filing of review of the Labour Officer’s draft ruling. His application was to once again suffer a still birth. The Honourable Kachambwa J in his judgement reference LC/H/205/2020 dated 5 September 2020 dismissed the application. His basis for taking the position he took was the Constitutional Court decision in the case of Isoquant Investments (Pvt) Ltd t/a ZIMASCO versus Memory Darikwa CCZ 6/20 where the law was clarified to the effect that where a Labour Officer makes a draft ruling whether against the employee or employer the draft ruling still has to be subjected to confirmation proceedings before it can have any legal effect. The Honourable Kachambwa J therefore found that there was no decision to review, in the absence of the Labour Officer’s draft ruling having been placed before this court and being either confirmed or set aside.

The Applicant was still aggrieved. He filed yet another application before this court this time seeking for directions as to how to proceed next with his matter. In a judgement delivered by the Honourable Murasi J this court on 22 November 2021, the court once again struck off the application by reason of it being improperly before the court. The basis for the decision was that the court had no jurisdiction to hear the matter as such an application is not provided for under the **Labour Act [Cap 28:01]** or ‘any other enactment.’ The court placed reliance on the provisions under **Section 89** of the **Labour Act [Cap 28:01]** which outline the powers, functions and jurisdiction of the Labour Court. The court, also placed reliance on **paragraph 2(1)** of the Supreme Court order which had spelled out that this court had no jurisdiction to hear the matter. The **Honourable Murasi J** also, noted that the application placed before the court was clearly amounting to an abuse of court process when considered against the factual background of the matter. He accordingly directed Applicant to pay costs on a higher scale.

The present application before the court is for condonation and extension of time to note an appeal. The application is opposed. The Respondent having taken points in limine I turn to address them.

**POINTS IN LIMINE (PROCEDURAL)**

Both parties appeared and made oral submissions before the court. The Respondent persisted with the point in limine taken that the Applicant was automatically barred for failing to file heads of argument on time. The Applicant accordingly had no right of audience based on **Rule 26** of this court rules. The Applicant had also not taken the option to file a chamber application seeking condonation for the late submission of the heads even after Respondent had raised the issue in heads of argument. The Applicant was also said to have improperly filed before the court an Answering Affidavit. The Respondent’s prayer was for the Answering affidavit to be expunged from the record. Respondent’s prayer was for matter to be heard as unopposed in view of the bar operating against Applicant. Applicant through counsel disputed that heads of argument had been filed late. A concession was made that there was however a delay in serving those Heads of Arguments on the Respondent. Counsel submitted that the provision in **Rule 26** is silent on the time frame for service to be effected upon the Respondent. In response Respondent counsel countered that rule 26 indicates clearly that service must be effected immediately. In this case there had been a delay from 2nd August to 22 September 2020 when service was eventually effected. In the absence of any explanation from Applicant for the delay it was Respondent’s prayer for the court to find that in view of Applicant’s non-compliance with the rules the matter ought to be treated as unopposed and application stood to be dismissed. Reference was made to a Labour Court decision in **Dyno Nobel (Pvt) Ltd vs Dyno Noel Working Committee LC/H/170/2012.**


The court record shows that the application was filed on 8 July, 2022. The notice of Response was filed and served on the Applicant’s Legal Practitioners on 22 July 2022. The Applicant therefore had up to 5 August 2022 to file his Heads of Arguments. This is in view of Rule 26(1)(a) of the Labour Court Rules, 2017 which read as follows;

“where an applicant or appellant is to be represented by a legal practitioner or representative at the hearing of the application. Appeal or review, the legal practitioner or representative shall – (a) within ten days of receiving a notice of response to the application, appeal or review, lodge with the Registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities, if any, which he or she intends to cite, and”

The record shows that Applicant’s Heads of Argument were filed on 2nd of August 2022. They were however served on Respondent on 22nd of September 2022. The Labour Court rules however in Rule 26(1)(b) as also read with Rule 11 require that a copy of applicant’s heads must be delivered upon the Respondent “immediately afterwards” i.e. after lodging with the Registrar. There has clearly been a delay in this case. The Applicant sought to explain the delay through the Answering Affidavit. As clearly noted by Respondent the Answering Affidavit is improperly before this court, in view of Rule 26(6) which reads as follows;

“After the heads of argument have been lodged with the Registrar, no further papers may be lodged without the leave of the Court.”

The Answering Affidavit, having being filed without the leave of court is improperly before the court it is accordingly expunged from the record. With regards the procedural point taken by the Respondent it is the court’s view on the basis of the decision of the Supreme Court in Mapondera and 55 others vs Freda Rebecca Gold Mine Holdings Limited SC 81 OF 2022 that although the point has merit, the circumstances in this case however showed that the delay was short and the Respondent had not shown how it was prejudiced by the delay in the service of the heads of argument. It is also the court’s view that given the nature of the issues in dispute between the parties this matter would best be resolved on the merits rather than on the technical points as taken. It is on this basis I dismiss the point in limine based on the late service of the heads of argument.

MERITS OF APPLICATION

The Respondent opposes the granting of the application on the basis of four key factors. Firstly, that this court is now functus officio, secondly that the appeal is in any event incompetent in view of the draft ruling remaining extant. Thirdly, the Respondent contends that the delay is inordinate and there has been no sufficient explanation from the delay. Lastly, the Respondent submits that there are no prospects of success appeal. I shall address the first two initially as they both raise a jurisdictional issue.

FUNCTUS OFFICIO

The Respondent submits that, in view of the two judgements already handed down by this court per Honourable Murasi, J in which it was held that this court has no jurisdiction, which judgements still remain extant, this court cannot overrule itself to now find jurisdiction in this matter. The respondent submission is the effect of the judgements is that they remain binding until set aside by a court of competent jurisdiction. Respondent has referred to various authorities including Bezuidenhout vs Patensie Sitrus Behenew BPK 2001 (2) SA(224)(E); Mahlangu vs Ndhlovu and Ors HB 104/2004” Passmore vs B.P. Shell Marketing Services (Pvt)Ltd SC 5/05’ Triangle Ltd vs Mukanya & Ors HH 105-17. The Respondent prayer is for this court to dismiss the application on this basis.

The Applicant through Counsel submits that the argument of functus officio does not hold substance. It is clear that the judgements/orders handed down by the Supreme Court and this Court were related to a different subject matter to the intended appeal. The Supreme Court for an example set aside specifically Honourable Muzofa J judgement and indicated that this court had no jurisdiction in view of the legal position prevailing then. In relation to the Honourable Murasi J judgement the court found that the matter was res judicata and struck the matter from the roll. This was also an application for condonation for late filing of a review not an appeal as in this case. The Honourable Kachambwa J judgement was also addressing an application for condonation for late noting of a review not an appeal as in this case. The Applicant’s prayer is for the court to dismiss the ground of objection.

The term ‘Functus Officio’ was defined by Honourable Chitapi J, in a judgement referred to by the Respondent i.e. Triangle vs Mukanya & Others HH 105-17 where the learned Judge held at pages 6 – 7 of the cyclostyled judgment;

“……functus officio denotes that the function of the court in regard to the decided matter has been performed. If a court pronounces its judgment it has done its job and cannot alter, supplement or alter its judgement save as may be provided by law….”

On the basis of this authority the point clearly has to be resolved in favour of the Applicant. It is clear upon a perusal of the record that the judgement/orders referred to by the Respondent are judgement/orders related to applications which were founded on different issues to the issue that is now before this court. The issue that is now before the court is an application for condonation where the Applicant intends to appeal against the Appeals Officer determination of 2016. It is clear that this court has not pronounced itself on that issue. So it is irrelevant that there are judgements that are extant from his court involving the same parties those judgements do not involve the issue that is before this court. It is on this basis the court dismisses the point.

**INCOMPETENT APPEAL**

The Respondent also submits that as long as the Labour Officer’s draft ruling has not been set aside by an order of a competent court it is not legally tenable for the Applicant to seek to appeal against the Appeal’s Officers decision as if the Labour Officer’s draft ruling does not exist. The Respondent further submits that this court has no jurisdiction to hear the intended appeal. Reliance has also been placed on statements made by **Honourable Kachambwa J** in his judgement suggesting that the Labour Officer’s draft ruling has to be placed before this court for confirmation. The statement reads as follows;

“The Applicant’s remedy lies in this application for confirmation.”

It is indeed correct as noted by the Respondent that the Supreme Court in its Order set aside the judgement by **Muzofa J** whilst at the same time indicating that this court had no jurisdiction to entertain an application for confirmation of the draft ruling in view of the findings made by the Labour Officer being against the employee ( now Applicant). It is generally accepted that that position was altered by the **Isoquant Judgement**. It is now the position a Labour Officer is still obliged to seek confirmation before this court of a draft ruling issued whether he has found in favour of the employer or the employee. The situation as it presents itself is that the Labour Officer involved in this case has not taken any steps to seek confirmation of the draft ruling following the **Isoquant Judgement**.

It is also common cause that the Applicant in referring his matter to the Labour Officer referred it as an appeal as per the dictates of **Labour (National Employment Code of Conduct) S.I. 15 of 2006**. Needless to point out those proceedings before the Labour Officer amounted to a nullity in view of the Labour Officer’s lack of jurisdiction. The principle was restated in authorities such as **Sakarombe and Anor vs Montana Carswwell Meats (Pvt) Ltd SC 44-20** and **Mabeza vs Sandvik Mining and Another SC 91/19**. The fact that the proceedings were a nullity is most likely the reason behind the laxity on the part of the Labour Officer to approach this court.


The Respondent however submits that the draft ruling remains extant, it has to be set aside by a competent court in order for the Applicant to proceed with his appeal. The court has a different view. Once it is accepted that the proceedings before the Labour Officer were a nullity for reasons as outlined above would there be a need for one to approach the court to have the court declare that position? I do not believe so. A nullity is simply a nullity. As for the statement made by my brother Honourable Kachambwa J that Respondent referred the statement was clearly made in obiter dictum no reliance can therefore be placed on it.

In the result both preliminary points as taken by Respondent are hereby dismissed for lack of merit.

**MERITS OF THE APPLICATION FOR CONDONATION**

The applicant has explained the delay, in that, when the Appeals Officer handed down her determination in 2016 he was set to challenge the decision. He had proceeded in terms of section 8(6) of Statutory Instrument 15 of 2006 to refer his appeal to a Labour Officer. As things turned out this was not the correct procedure to follow as he ought to have proceeded to directly lodge his appeal with this court. He contends that there was a grey area in the law at the time. It had to take the Supreme Court in the decision of Sakarombe N.O and Anor vs Montana Carswell Meats referred to supra to pronounce the current position of the law that the labour officer had no appellate or review jurisdiction. The Applicant has also submitted that during the time he was a self-actor and this mistake was not of his own making. He also contends that he has always been desirous to challenge the employer’s decision. The Applicant submits on the basis he has presented a reasonable explanation for the delay.

Applicant has also submitted that, in the event that his explanation is found to be unreasonable condonation can still be granted on the basis of clear prospects of success. Applicant referred the court to Moyo vs President, Board of Inquiry & Ors 1996 (1) ZLR 318 (HC). The Applicant also submits that his intended appeal carries good prospects of success.

The Respondent contends that the delay in this case is an inordinate delay i.e. six (6) years. It is also contended that the explanation tendered is not plausible, on the basis that firstly ignorance of the law is not a valid excuse. Respondent has referred to Ncube vs Ndlovu 1985 ZLR 281 (SC) Savanna Pharmaceutical (Pvt) Ltd vs Judith Marera & Anor SC 24-19, Secondly, the Applicant has not shown when it is he actually became aware of the correct procedure, timelines being important in an application such as this one. The Respondent refers to Ganda vs First Mutual Life Assurance Society SC 01-05. On the issue of prospects of success Respondent contends that there are nil prospects in this case. The Respondent submits that the decision of the Labour Officer seeking to be challenged is the subject of findings by another tribunal that is labour officer. In addition this court has through pronouncements made by Murasi J, already found that Applicant was properly convicted. The Respondent has also taken the liberty to outline specific findings made by the Appeals Officer which findings this court cannot lightly interfere with.

FINDINGS

The decision of the Appeals Officer that Applicant seeks to appeal against was handed down on 18 July 2016. That delay of six years is inordinate by any standard.

The explanation tendered by the Applicant is also not a plausible explanation. It is correct as indicated by Respondent that ignorance of the law is not a valid excuse. It is clear in any event that the Tafadzwa Sakarombe judgment did not create any new law. It merely restated the position of the law as per previous Supreme Court judgments such as Misheck Mabeza vs Sandvik Mining & Anor SC 91-19 and Watyoka vs ZUPCO (Northern Division) 2006 (2) ZLR 170.

The Supreme Court has also in a recent decision i.e. Mukarati vs Pioneer Coaches (Pvt)(Ltd) SC 34 of 2022 expressed the view that parties should not be allowed to continue relying on this argument of the invalidity of proceedings before a Labour Officer. Writing for the Supreme court in that matter Honourable Mathonsi JA stated as follows;

‘Regarding the issue, of costs, the jurisprudence which has come out of this court on the invalidity of proceedings brought before a Labour Officer in the way the present matter was done has been available for quite some time. Counsel in this matter should have known of it. They did not do anything about the fate of this appeal right up to the date of hearing. Accordingly the view I take is that neither of the parties is entitled to costs for that reason.”

The court chooses to take a similar approach. The explanation tendered by the Applicant in this case is not a plausible explanation.

A party who has filed his application in the event of a long delay, whose explanation is also not reasonable can only succeed if he has good prospects of success. The court was aptly referred by Applicant to the case of Moyo vs President, Board of Inquiry supra. The Applicant according to his draft notice of appeal, intends to attack the decision of the Appeals Officers on the basis of the following;
 Firstly, that her findings made were contrary to the facts/evidence as presented; Secondly, that the findings made in respect of telephone conversation between Applicant and Terence Mapudzi were improper in view of the absence of a transcript or audio recordings, thirdly, that the Appeals Officers exhibited bias by refusing to recuse herself, Lastly, the Appeals Officer misdirected herself by findings the NOIC report as evidence against Applicant.

A perusal of the Appeals Officer determination shows a well-reasoned judgement, her findings were consistent with the facts/evidence as placed before her. She made crucial finding that the Applicant did not deny calling Terence Mapudzi, that the calls coincided with the period ZERA team in which Applicant was a driver were in Mutare to conduct spot-checks. There would have been no need for her to insist on hearing the audio or a condoue telephone conversation. She also properly dismissed the Applicant’s defence that he was only calling Terence in regards a proposed sale of a stand by a third party. In regards the NOIC report which implicated Applicant it is clear that this was admitted in evidence without any objection from Applicant. On the issue of bias the record does not reflect that the Applicant requested the Appeals Officer to recuse herself at the material time. She cannot be accused of being biased in such circumstances. It is clear that the intended appeal is devoid of merit.

On the issue of costs Respondent submits that this application must be dismissed with higher costs. This is in view of the long history of this matter the fact that it has been dragged through various forums in the judicial system to defend frivolous applications by Applicant. Reference has also been made to sentiments of Honourable Murasi J in his judgment. I entirely agree with the Respondent on this score. It is apparent the Applicant did not take heed of the sentiments by my brother, Honourable Murasi J in his judgment. There must be finality to litigation The Applicant must once again pay costs on a higher scale.

It is accordingly ordered as follows;

The application for condonation and extension of time within which to note an appeal be and is hereby dismissed with costs on a higher scale.

Thoughts Deme Attorneys for Applicant
Kanton and Immerman Attorneys for Respondent
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