Zimbabwe Council for Higher Education (ZIMCHE) v Zimbabwe Universities and Allied Workers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/171/14
HELD AT HARARE 14TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/171/14

HELD AT HARARE 14TH MARCH 2014			CASE NO LC/MC/01/14

& 28TH MARCH 2014

In the matter between:-

ZIMBABWE COUNCIL FOR HIGHER			Applicant

EDUCATION (ZIMCHE)

And

ZIMBABWE UNIVERSITIES AND ALLIED		Respondent

WORKERS

Before The Honourable L.M. Murasi, Judge

For Applicant		Mr J.R. Tsivama (Legal Practitioner)

For Respondent		Mr A Mugwanju (Trade Unionist)

MURASI, J:

At the close of submissions I dismissed the application stating that the reasons would follow.  The following are the reasons.

Applicant is a body corporate established in terms of the Zimbabwe Council for Higher Education Act [Chapter 25:57].  Applicant is alleged to have reduced Respondent’s members’ salaries resulting in the matter being referred to arbitration.  The arbitrator ruled in favour of Respondent on 3 October 2013.  Applicant states that it was only after receiving communication from the Ministry of Higher and Tertiary Education that it resolved to note an appeal in the matter.  The period within which to note the appeal had expired, hence this application for condonation for late noting of appeal.

Applicant’s draft Notice of Appeal contains the following averments:

That the arbitrator erred in holding that the appellant’s decision to vary the respondent’s members’ remuneration was unlawful when it was common cause that appellant was acting on the basis of a directive by the Ministry of Higher and Tertiary Education which provides the funds for the salaries.

The arbitrator erred in failing to appreciate that it became legally and practically impossible to perform the contract once the Ministry of Higher and Tertiary Education as the paymaster refused to pay those salaries and itself had no legal obligation to pay them or to provide the appellant with the funds to pay those salaries.

The arbitrator erred in not appreciating that the appellant has no capacity or means to pay the salaries provided in the contract of employment and has to rely on Treasury through the Ministry of Higher and Tertiary Education and in any event cannot deny the instructions or directives of the state.

The arbitrator erred in not appreciating that paying the respondents more than other state-owned universities for the same work and using public funds is contrary to public policy and therefore unlawful.

Respondent submitted that the appeal was doomed to fail as it was

not raising any points of law.  Respondent further stated that the noting of appeal was an attempt to delay the payments to its members as there were no prospects of success on appeal.  Respondent referred the Court to several decided cases on the matter.

In considering applications of this nature,  courts have regard to certain criteria as guidelines.  Some of these were stated by SANDURA JA in Kodzwa v Secretary for Health and Another 1999 (1) ZLR 313 at p 315 E where he stated:

“It is therefore well established that the court has discretion to grant condonation when the principles of justice and fair play demand it and when the reasons for non-compliance with the rules have been explained by the applicant to the satisfaction of the court.”

In casu, Applicant became aware of the arbitral award on 3 October 2013.  The applicant did nothing about the matter.  In fact the Founding Affidavit from the applicant’s Chairperson, Professor Christopher Chetsanga reveals the following:

“Therefore, on receipt of the award the applicant forwarded a copy to the Ministry for guidance since it (literally) holds the purse strings.  In the meantime the applicant proceeded to comply with the order using funds already provided by Treasury pending communication regarding Ministry’s directive.”

A reading of the above shows that before any communication from the Ministry, applicant was satisfied with the arbitral award.  It had no qualms with implementing it.  After the communication from the Ministry, applicant resolved to approach the Court to contest the arbitral award.

An explanation for not complying with the Rules of the Court has to be reasonable.  The Court finds that the behaviour by the applicant was not reasonable.  Applicant received the award and decided to comply with it.  It only changed its mind after receipt of some communication from a third party who was no party to the proceedings.  Applicant has not filed any documents showing when it received the instruction from the Ministry, and what the contents of that instruction were.  In any event, it has been held that in cases of

“flagrant breaches of the Rules, especially where there is no acceptable explanation therefore, the indulgence of condonation may be refused whatever the merits of the appeal are.  This applies even where the blame has solely with the attorney.”

(See Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd  1998 (2) ZLR 249 (S) at p 254 D-E).  ZIYAMBI JA had this to say in Paul Gary Friendship v Cargo Carriers Ltd and another SC 1/3 at p 4 of the cyclostyled judgment:

“Condonation is an indulgence which may be granted at the discretion of the court.  It is not a right obtainable on demand.  The applicant must satisfy the court/judge that there are compelling circumstances which would justify a finding in his favour.  To that end, it is imperative that an applicant for condonation be candid and honest with the court.”

I now turn to the question of prospects of success on appeal.  Despite the fact that applicant’s Founding Affidavit clearly states that, but for the Ministry’s insistence, it would be happy to honour the award, the grounds of appeal go on to state that the arbitrator erred in making the decision that he did.  As pointed out by respondent’s representatives, it is difficult to find what points of law are raised in the grounds of appeal.  The Court, has not been able to find what points of law the appellate court is enjoined to determine.  The grounds of appeal are merely factual issues that emanate from the hearing.  This was  lamented by GARWE JA in Sable Chemical Industries Ltd v David Peter Easterbrook SC 18/10 at p 11 of the cyclostyled judgment:

“The words” on a question of law” have been added simply to give the impression that what is being raised is a question of law and yet the real issue raised in that ground of appeal is whether or not the committee (was) properly constituted, clearly an issue of fact.”

Applicant further alleges that the appeal raises a point of law in that the contract is impossible to perform and that this is a matter which should be decided by an appellate court.  Similar issues came up for decision inMidlands State University Council vMidlands State University Lecturers Association SC 42/05.   In that case the Supreme Court held that a body corporate cannot rely on a third party to fulfil its mandate where the statute clearly provides for that. What is clear is that applicant is a body corporate established in terms of the Act.  The act gives it the mandates to employ and remunerate staff and generally be responsible for its financial affairs.  The Act does not rope in the Government as being legally obliged it to fund applicant’s operations.  It might be correct the Government may well be funding the operations of the applicant but the legal position as given by Parliament does not change.  It is applicant’s duty to fulfil the contracts signed with its employees and it cannot be heard to be saying in a court of law that a third party is unable to fulfil that obligation.  It is clear that if Government were intent on changing the position as statutorily provided for, it would amend the law accordingly.  The Court is of the view that the arbitral award cannot be faulted and applicant has no prospects of success on appeal.

In the result, the Court finds that the application for condonation for late noting of appeal is devoid of merit and must be dismissed.

The Court therefore makes the following order:

The application for condonation for late noting of appeal be and is hereby dismissed.

There is no order as to costs.

Sawyer &Mkushi, Applicant’s legal practitioners