Zimbabwe Broadcasting Corporation (PVT) LTD v Mathias Mudzimiri

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/91/2014
HARARE, 11 & 28 FEBRUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/91/2014

HARARE, 11 & 28 FEBRUARY 2014			        CASE NO. LC/H/521/13

In the matter between:-

ZIMBABWE BROADCASTING  CORPORATION		Applicant

(PVT) LTD

And

MATHIAS MUDZIMIRI						Respondent

Before The Honorable F.C. Maxwell, Judge

For Applicant		Mr. A. Muchandiona (Legal Practitioner)

For Respondent		Ms R.R. Mutindindi (Legal Practitioner)

MAXWELL J:

This judgment concerns two applications for condonation filed by the Applicant.  They are for condonation for late filing of heads of argument in both an application for interim relief and the main appeal.

Respondent was employed by Applicant on contract.  Initially the contract was from 2003-2008.  However in 2007, before the expiry of the initial contract, the parties entered into another contract for the period 2007-2010.  Respondent alleges that the initial contract was tacitly renewed by Applicant in March 2009 to expire on 31 December 2013, with an option for renewal for another five years.  He claims that he was assured that his contract would be renewed and he continued working.  He alleges that he was surprised on 14 April 2009 when there was a notice appointing him to a lower position.  In his view that appointment is null and void.  He claims to have continued receiving salary and benefits in terms of the 2003-2008 contract.  He continued  being remunerated until June 2012, which to him was confirmation that his contract of employment had been tacitly renewed in 2009.  Respondent alleges that his contract became one without limit of time.  In his view the unilateral withholding of his salary and benefits from June 2012 to date is illegal and a breach of the Labour Act.

Applicant denies that there was tacit renewal in 2009.  It claims that the relevant contract ran from 1 July 2007 to 30 June 2010 after the initial contract had been superseded.  Applicant alleges that in May 2009 Respondent was instructed in writing to surrender a motor vehicle he was using and he refused to comply.  Disciplinary proceedings were instituted.  Respondent complained to the Ministry of Labour and the matter was referred to an arbitrator.  Applicant alleges that the parties agreed that Respondent would remain on suspension with full pay and benefits pending the finalization of the arbitration proceedings.  Applicant claims that Respondent did not pursue the matter and it was not heard by the arbitrator until the contract of employment came to an end through effluxion of time on 30 June 2010.  Applicant alleges that the Respondent continued to receive salaries and benefits under the erroneous belief that such payments were required until the arbitration proceedings were finalized.  The payments were stopped immediately after receiving advice that the arbitration proceedings had no bearing on the agreed duration of the parties’ contract of employment.  Respondent never tendered or rendered his services to the Applicant after the expiry of the contract of employment on 30 June 2010.

Aggrieved by the non payment of salary and benefits since June 2012 Respondent referred the matter for conciliation.  There was no settlement and the matter was referred for compulsory arbitration in terms of section 93 as read with section 98 of the Labour Act [Cap 28:01]. On 4 July 2013 honourable Arbitrator T.S. Makamure issued an award in favour of the Respondent.  The award was to be implemented within fourteen working days from the date of receipt.

On 10 July 2013 Applicant noted an appeal against the award.  Respondent filed a response on 22 July 2013.  Before the Respondent filed the response, Applicant filed an application for interim relief in terms of section 92E (3) of Labour Act [Cap 28:01] on 16 July 2013.  Respondent opposed the application on 25 July 2013.  On 16 August 2013 Applicant filed heads of argument in respect of the appeal.  On 29 August 2013 Applicant requested the Registrar of this Court to set down the application for interim determination. On 11 September 2013 Respondent filed heads of argument in relation to the application for interim relief.  He raised a point in limine that Applicant’s heads of argument were filed out of time.  On 12 September 2013 Respondent filed heads of argument in relation to the appeal in which he raised issues that

Applicant has dirty hands since it had not obtained interim relief.

Applicant’s heads of argument were file out of time and therefore it was barred.

Applicant’s appeal does not raise any question of law as envisaged by Section 98 (10) of the Labour Act [Cap 28:01]

On 25 September 2013 Applicant filed heads of argument in relation to the application for interim relief.  By notice dated 27 September 2013 the Registrar set down the application for interim determination for hearing on 11 October 2013.  On the said date the parties appeared before this Court.  Respondent raised a point in limine which was contained in his heads of argument to the effect that Applicant did not file heads of argument timeously.  The point in limine was upheld and the matter was struck off the roll with costs.

On 16 October 2013 Applicant filed the application for condonation for late filing of heads of argument in the main matter.  On 17 October 2013 the Applicant also file the application for condonation of late filing of heads of argument in the application for interim determination.  Both applications were opposed on 5 November 2013.  On 22 November 2013 Applicant filed heads of argument in respect of both applications and Respondent’s heads of argument were filed on 11 December 2013 for both applications.

At the hearing of these matters Counsel for Applicant urged the Court to consider among other things the fact that

Applicant has always demonstrated an intention to prosecute the matters.

The heads of argument in both matters were filed before they were set down, in any event the appeal has not yet been set down.

A commentary on the Labour Act confirms that the practice of this Court has been to deal with applications for interim relief upon written request by a party without heads of argument by virtue of their urgent nature.

As regards the appeal heads of argument were not filed timeously but were delayed by only two days as a result of an oversight on the part of the legal practitioner.

A public holiday preceded the last day of filing papers and the legal practitioner was overwhelmed by work.

Applicant has good prospects of success on appeal.

Respondent reiterated that heads of argument were filed out of time and no justifiable reason has been given for the non compliance with the rules.  And further that the arbitrator’s award is unassailable in law and in fact.  Respondent further submitted that the fact that the heads of argument in the appeal were out of time by two days does not assist Applicant as a reasonable explanation for the delay is still required and none was offered.  The reason given is unreasonable as it is merely for the convenience of the legal practitioner.  Respondent pointed out that Applicant was notified that the heads of argument had been filed out of time on 12 September 2013 but only filed the application for condonation on 17 October 2013, over a month later.  No reason has been tendered for the delay in seeking condonation.  I will consider the applications for condonation separately.

Application for condonation of late filing of heads of argument in the application for interim relief.

As stated above, on 11 October 2013 the Court pointed out the need for Applicant to seek condonation for late filing of heads of argument in this matter.  The application was only filed on 17 October 2013.  Applicant has not taken the Court in his confidence to explain why it took more than five days to file the application.  As stated by ZIYAMBI JA in Tanganda Tea Company Limited v Paul Madoda SC 97/02.

“it cannot be over-stressed that an applicant for condonation must place all the necessary details before the Court to enable it to correctly assess the merits of the application.”

It is pertinent ……

It is pertinent to note that it has been stated in a number of cases that a person seeking condonation should give a reasonable explanation for the delay in seeking condonation see

Prosper Ganda & Others v First Mutual Life Assurance Society SC 1/05

Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249

Highline Motor Spares and Hardware (1993) (Pvt) Ltd & Others v Zimbank SC 37/02

Condonation is not granted for the mere asking.  The Applicant must satisfy the Court that there is good cause to excuse the non compliance with the rules of Court and grant the indulgence.  In the words of MHURI J in W.K. Dzimbiri and Others v Haggie Rand LC/H/464/13.

“Condonation is an acceptance that I did not do what I was supposed to do within the stipulated time, whether it is out by 5, 10 or 15 days …..”

Applicant has not attempted to explain the reason for the delay in seeking condonation.

The founding affidavit in this application reveals that Applicant is more concerned with justifying why in its view it had not been necessary to file heads of argument in this matter.  This was despite the fact that the Court had taken a position that the heads of argument should have been filed timeously and hence the decision of 11 October 2013 stricking the matter off the roll.  The deponent to the affidavit claims that in his experience applications for interim determination are urgent and are usually dealt with by the Court on an urgent basis without the need for heads of argument.  The deponent’s experience would be relevant if no legal practitioner is involved.  In terms of Rule 19 SI 59/2006 heads of argument are required where a party is to be represented by a legal practitioner.  In this case the Applicant’s heads of argument were filed by a legal practitioner.  It is a legal practitioner’s duty to his client to ensure that he is well versed in the Rules of the Court in which he appears on behalf of his client.  It is unacceptable that a legal practitioner who appears in this Court is not conversant with the rules of this Court.

The deponent goes on to state that he was of the view that “the heads of argument relating to the appeal which were filed on 16 August 2013 would assist the Court in assessing whether or not the Applicant has good prospects of success in the main appeal which is one of the paramount factors to be taken into account in determining an application for interim relief” (paragraph 22 Founding Affidavit).  The deponent failed to appreciate that the application for condonation for late filing of heads of argument in the application for interim relief stands on its own and should comply with the requirements for applications in the rules of this Court.  That one has filed heads of argument in one application does not excuse a litigant from the requirement to file heads of argument in another application.  In any event good prospects of success are immaterial without a reasonable and acceptable explanation for the delay.  See National Union of Metal Union of South Africa (NUMSA) Obo Kunene and Others v Venture Otto (Pty) Ltd (D77/10)[2013] ZALCD 9 (May 2013).

The default and the lack of explanation thereof have to be considered together with other factors.  These are the prospects of success on appeal, the interest of the Court in the finality of judgments and the prejudice to the party who is unable to execute his judgment.  See Paul Friendship v Cargo Carries Limited & Another SC 1/13. The question that must be answered next is whether Applicant has prospects of success on appeal.  Paragraph 24 of the Founding Affidavit outline the facts upon which Applicant relies in arriving at the conclusion that the prospects of success are good.  Applicant states that the Arbitrator did not hear viva voce evidence from the parties or their witnesses before coming up with an award.  This is surprising as the Arbitration Award has the following sentence in the opening paragraph.

“The parties agreed that the matter should be decided on record.”

There was nothing irregular in not hearing viva voce evidence as that was what the parties had agreed on.

Applicant put its first ground of appeal as the fact that the Arbitrator misdirected herself in ignoring the three year contract which was signed by the parties covering the period between the 1st July 2007 and the 30th June 2010.  The award shows that she did not ignore it.  In her assessment the 2007 – 2010 contract was superseded by a new contract introduced by a letter of 5 February 2008.  Respondent was to serve as a Technical Operations Manager up to 31 December 2008.  In 2009 he continued to work as Manager Technical Operations. The honourable Arbitrator commented that

“Therefore it is not tenable for the Claimant to be rated under 2003-2008 contract or the 2007 to June 2010 contract because all these were rescinded by the agreement of 2008.  The 5th of February 2008 agreement is the contract that obtains because it specified the date of the expiry of the contract and was the last to be signed.” (page 7 of the award).

It is therefore not correct that the Arbitrator ignored the parties’ contract.  Applicant also claims that the Arbitrator misdirected herself in holding that the parties’ employment contract was converted into a contract without limit of time.  The Arbitrator held that the contract to be put under scrutiny is the one that existed from 2009.  She found that Respondent was no longer governed by the 2007-2010 contract as from 2009.  There was no fixed duration contract for the period 2009 to June 2010.  She further concluded that as there was no express effort to terminate the fixed duration in December 2008 or even in June 2010 the contract continued tacitly after 2008.  According to her analysis it went beyond June 2010 and it still subsisted to the date of writing the award.  There is a probability that an Appellate Court might not find reason to interfere with the Arbitrator’s conclusions.  She indicated on page 5 of the award that her analysis is centered on “the evidence from the record of proceedings and the written submissions submitted by the parties before me”.

Applicant also raises as a ground of appeal that Respondent could not have entertained a legitimate expectation that his employment contract would be renewed after 30 June 2010 as he had repudiated his contract of employment by disobeying a lawful order to return the motor vehicle he was using.  There is no sound basis for this ground as the issue of the motor vehicle is subject of arbitration proceedings which are yet to be concluded.  Applicant also claims that the Arbitrator was wrong in holding that it was the Appellant’s duty to pursue a case which had been initiated by the Respondent.  I do not find anything wrong with the Arbitrator’s finding.  Litigation and Arbitration proceedings have default procedures which Applicant could have pursued to bring closure to the matter.  In the absence of such closure Applicant was bound by the agreement to pay until finalization of the matter before the Arbitrator.

The Arbitrator is also accused of having foisted a non-existent contract of employment on the parties.  As stated above she analysed the facts and documents presented to her and arrived at a conclusion that might not be acceptable to Applicant but cannot be termed so outrageous in its defiance of logic that no sensible Arbitrator applying his mind to the facts would have arrived at such a conclusion.  It is not correct that the Arbitrator did not consider submissions on behalf of the Appellant as stated in the last ground of appeal.

At the hearing Applicant raised the issue that Respondent received terminal benefits at the point he was advised that his contract had expired and would not be renewed.  This is an issue which was being raised for the first time.  As it had not been raised before the Arbitrator I find it improper that Applicant sought to introduce it before this Court.  For that reason I will not consider whether or not there is merit in Applicant’s submission.

For the above reasons I am not convinced that Applicant has any prospects of success on appeal.  The application for condonation of late filing of heads of argument in the application of interim relief therefore fails.

Application for condonation of late filing of heads or argument in the main appeal

As already stated Applicant noted an appeal on 10 July 2013.  Respondent filed a response on 22 July 2013 and served it on Applicant on same day.  Applicant  was required by the rules of this Court to file heads of argument within fourteen days of receipt of the response, in any event by the 5 August 2013.  Applicant at the hearing submitted that the heads of argument filed on 16 August 2014 were filed 2 days out of time.  It is not clear now Applicant was counting the days.  Further Applicant displayed an attitude that since the heads of argument were filed before the appeal was set down there was no prejudice on the Respondent and therefore the delay should be condoned.  That is to ignore the fact that where time periods are provided for in a statute or legislation, it is intended to ensure the expeditions resolution of matters and the principal litigant must prosecute his case with due expedition.

The reason given for the delay is that a public holiday preceded the last day of filing of papers.  Counsel for Applicant indicated it was an oversight on the part of the legal practitioners.  GWAUNZA JA in Selk Enterprises (Pvt) Ltd v Chimenya and Others SC 10/03 held that the explanation that the default was occasioned by an “oversight” on the part of the legal practitioners was manifestly inadequate.  In KM Auctions (Pvt) Ltd v Adenash Samuel and Another SC 15/12 it was held that the fact that the legal practitioner’s conduct caused the delay  is not a reasonable explanation in an application such as this.

As regards the prospects of success an appeal, I have already considered then above.

Accordingly I do not find merit in both applications and they therefore fail.  I therefore order as follows

The application for condonation of late filing of heads of argument in the application for interim relief, being without merit, be and is hereby dismissed.

The application for condonation of late filing of heads of argument in the main appeal, being without merit, be and is hereby dismissed.

Applicant is to pay costs of suit.

Danzinger & Partners, Applicant’s legal practitioners

Matsikidze & Mucheche, Respondent’s legal practitioners