Zimbabwe Cricket Union v Andrew Muzamhindo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/122/14
HARARE ON 20th FEBRUARY, 2014
CASE NO. LC/H/100/13
AND 14 TH
JUDGMENT NO. LC/H/122/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/122/14

HARARE ON 20th FEBRUARY, 2014			                         CASE NO. LC/H/100/13

AND 14TH MARCH 2014

In the matter between

ZIMBABWE CRICKET UNION				–	Applicant

And

ANDREW MUZAMHINDO            			–	Respondent

Before The Honourable L. M. Murasi, J.

For Applicant   :	Mr T.P. Machiridza (Legal Practitioner)

For Respondent:	MrB.  Ngwenya(Legal Practitioner)

MURASI, J.

At the conclusion of the hearing, the Court dismissed the application stating that reasons would follow. These are they:-

This matter has endured so many quick and false starts in its litigation career. Applicant and Respondent found themselves before an Arbitrator after the conciliation process failed. The Arbitrator found in favour of Respondent and awarded him USD 103 203.38 and ZWD 15 818 201 352.75 as arrear commission. Respondent thereafter lodged an application with the High Court for registration of the award. This was granted. Apparently Applicant did not attend those proceedings despite proper service. Applicant thereafter approached this Court for relief against the arbitral award. The appeal was dismissed for want of prosecution. Respondent’s bid to execute the award was met with both administrative and legal challenges. Applicant applied for a stay of execution of the award with this Court. This was dismissed and Applicant filed an application for leave to appeal to the Supreme Court  against  JUSTICE KUDYA’S  decision. The learned Judge dismissed the application for leave to appeal. Meanwhile Applicant had instituted interpleader proceedings in the High Court which were also dismissed by that Court.

Applicant resorted to making this application for condonation for late noting of an application for reinstatement of the appeal that was dismissed in 2011. Note should be taken of the fact that Applicant filed an “Application for Reinstatement of Appeal” with this Court on 11th January 2013. Applicant was to formally withdraw the application for reinstatement of the appeal on 6th September 2013 which was later substituted on 6th September 2013 with an application for condonation of late noting of application for reinstatement. Applicant submits that the abrupt departure of a legal practitioner led to the delays encountered in dealing with this matter. Applicant further states that the default was not wilful and that the explanation is reasonable. Applicant states that it is unable to track down the legal practitioner so that he could give clear explanations as to what transpired. As to the prospects of success, Applicant avers that the award violated the Exchange Control Regulations, Statutory Instrument 101 of 1996. Applicant further stated that the balance of convenience favours the Applicant as no prejudice will be suffered by Respondent.

Respondent submitted that no sufficient cause has been placed before the Court to condone non-compliance with the Rules. Applicant waited for a long period of time before applying for condonation and thereafter gave an unsatisfactory reason. As to the prospects of success, Respondent submitted that the appeal does not raise any point of law and does not have merit.

It is trite that certain principles guide applications of this nature. Hebstein and Van Winsen’s - The Civil Practice of the Supreme Court in South Africa 4th Ed at pages 897 to 898 state that:

“Condonation of the non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance ……….. The factors usually weighted by the court in considering an application for condonation……. include the degree of non-compliance, no explanation for it the importance of the case the prospects of success, the respondent’s interests in the finality of the judgment, the convenience of the court and the unnecessary delay in the administration of justice.”

The Court will consider these guiding principles in turn. The first issue concerns the degree of non-compliance and the explanation for it. It is common cause that the extent of the delay is some 18 months. Applicant states that the inordinate delay was not of its making as the lawyer dealing with the matter abruptly left and no one knew the status of the matter. Applicant’s Counsel was unable to satisfactorily explain what transpired when the lawyer left. The Court brought to Counsel’s attention that the lawyer’s Personal Assistant would have been in a position to advise on all pending matters. Above all, this meant that all the cases that the lawyer was handling were “in limbo” during the period in question. This is hardly a plausible explanation. It also meant that the law firm did not periodically carry out an assessment of all outstanding work and what funds were owed to the firm by clients. No affidavit has been availed from this lawyer. The Court is not satisfied that Applicant has explained the cause of delay. It has been held by precedent that the sins of the lawyer will undoubtedly taint the client where a legal practitioner shirks his duty to exercise reasonable professional competence and diligence in the pursuit of his client’s instructions (see generally Maswaure v Nyamunda 2001 (1) ZLR 405). ADAM J. had this to say in HPP Studios (Pvt) Ltd vs ANZ (Pvt) Ltd 2000 (1) ZLR 318 at page 334:

“These rules of court are made in order to prevent delay or injustice being done owing to this delay, and a bar should not be uplifted as a matter of course; it should not be done merely for the asking, otherwise the rules may as well be torn up.”

The cases cited above clearly show that there is need to comply with the rules of the Court unless there is some justifiable reason which can persuade the Court to condone such non-compliance.

The Court will examine the prospects of success next.  A look at the original grounds of appeal lodged with this Court on 9th November 2009 shows a list of some ten (10) grounds of appeal. It is noteworthy that none of the grounds require the Court to make a determination of what the law is. This is a requirement in terms of Section 98(10) of the Labour Act in respect of appeals from an Arbitrator’s decision. (Also see the Muzuva case). Applicant has not made any averment of gross misdirection on the part of the Arbitrator. Applicant seems to suggest that the determination of the Arbitrator contravened the Exchange Control Act, which is not contained in the grounds of appeal. As stated by GARWE J.A. in Sable Chemical Industries Limited vs David Peter Easterbroook at page 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 yet the real issue in that ground of appeal is whether or not the Committee properly constituted clearly an issue of fact.”

The grounds of appeal are on factual findings by the Arbitrator. No matter how they are clothed, they do not mutate into points of law. It is trite that an appellate court can only interfere with the decision of an inferior tribunal where there is evidence of gross irregularity or that the tribunal arrived at a decision which no reasonable person would arrive at on the same facts. The Applicant has not placed such evidence about the Arbitrator’s findings and the Court is of the firm view that an appellate court will not interfere with the Arbitrator’s findings.

The Court will lastly consider Respondent’s interests in the finally of the matter and the delays in the administration of justice together. The facts show that the Respondent went and registered the award with the High Court and attempted to execute. He has been unable to do so. Respondent has shown diligence in trying to pursue his rights and it is clearly shown that he is interested in the timeous finalization of the matter. The same cannot be said of the Applicant when consideration is had to the history of the matter as chronicled by the Court at the beginning of this judgment. The Court observes that Applicant has hopped from one litigation forum to another without success. Whilst it is certainly a litigant’s right to seek legal redress the Court finds that the conclusion arrived at by the Respondent that Applicant is bent on frustrating him, cannot be faulted given the circumstances of the matter.  There is need for finality in litigation.

After having considered the submissions made by both parties the Court shares the views of SANDURA J.A. in Kodzwa vs Secretary for Health and Another 1999 (1) ZLR 313 (S)  at page 315 where he stated thus:

“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.”

The Court is of the view that the Applicant has not advanced cogent reasons to the satisfaction of the Court which would persuade the Court to grant the application.

In the result, the application for condonation for late noting of an application for reinstatement of the appeal is dismissed. Costs are awarded to Respondent as tendered by Applicant.

Manase and Manase – Applicant’s legal practitioners

Chinawa Law Chambers – Respondent’s legal practitioners