On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.It is opposed by the first respondent.They seek the following relief:1. The application for condonation and non-compliance ...
On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.
It is opposed by the first respondent.
They seek the following relief:
1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.
2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.
3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.
4. Each party shall bear its own costs.
THE FACTS
The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.
The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).
The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.
The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.
The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.
The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.
The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.
The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.
The first applicant regards the termination to be a retrenchment process.
The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.
He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.
The two applicants were aggrieved by the entire retrenchment process.
They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.
He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.
Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.
He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.
He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.
Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:
(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.
(ii) The second was that it had a reservation arbitration clause.
Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.
The Labour Court confirmed the ruling on 19 May 2017.
It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.
It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue.
Aggrieved by the confirmation, the applicants appealed to this Court in SC566/17 on 4 August 2017.
The subsequent chamber application instituted by the employer, to strike off the appeal under SC743/17, was dismissed. Resultantly, the employer sought to be joined in the appeal on 18 December 2017, in SC1087/17.
The application for joinder was set down together with the appeal hearing.
At the hearing, on 22 February 2018, this Court mero motu raised the propriety of the confirmation proceedings.
The views of this Court must have prevailed, as an order by consent, in which the employer withdrew the joinder application while the applicants withdrew the appeal ensued.
A further attempt to file another notice of appeal at the Labour Court was declined by the Registrar of the Labour Court on the ground that such a notice was, in terms of section 92F of the Labour Act [Chapter 28:01] (the Act), due at the Supreme Court.
Thereafter, the applicants concerted effort to the Registrars of the Labour Court and Supreme Court, in March 2018, for directions on the appropriate procedure to assail the draft ruling went unanswered.
On 25 September 2018, some seven months after the consensual withdrawals, this Court passed judgment in Drum City (Private) Limited v Brenda Garudzo SC57-18.
In that case, the labour officer entered a draft ruling in favour of the employee and against the employer. The labour officer then sought confirmation of the draft ruling before the Labour Court, in terms of section 93(1) as read with section 93(5a) and (5b) of the Labour Act.
She cited the losing employer as the only respondent, purportedly in terms of section 93(5a) of the Labour Act, which required “the employer or any other person against whom the ruling is made” to be the respondent in the confirmation proceedings.
This Court held, that, the legislature could not have intended to exclude a party with a direct and substantial interest in the confirmation proceedings, such as the employee in whose favour the draft ruling pertained, from participating in such proceedings as a co-respondent.
It accordingly allowed the appeal, set aside the confirmation proceedings, and remitted the matter to the Labour Court for the joinder of the employee and a re-hearing of the confirmation.
However, at paragraphs [12] and [13] this Court, en passant, remarked that:
“[12]…, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss(5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).
That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'
[13] Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer which is made in favour of an employer and against an aggrieved employee. It follows that the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.”
These remarks were jettisoned by MALABA CJ in the Constitutional Court in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CC06-20…,. He pertinently observed that:
“One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a draft ruling has been made against the employer that confirmation proceedings would ensue. The remarks were made as obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.”
The remarks in [12] and [13] were clearly obiter dictum because they did not relate to the issue that was before the court, which was whether or not the Labour Court could properly hear and determine an application for confirmation in which the employee was not cited.
The remarks answered the question, which was not before the Supreme Court, whether confirmation proceedings could be lodged in respect of a draft ruling that was made against an employee.
Before the Constitutional Court was a contention that the citation of the employer or other person against whom the draft ruling related, to the exclusion of the employee, infringed the employer's right to equal protection and benefit of the law enshrined in section 56(1) of the Constitution.
The Constitutional Court, inter alia, relied on the ratio decidendi of Drum City (Private) Limited v Brenda Garudzo SC57-18, and held that despite the “statutory ambiguity or vagueness” in the words “employer or other person” in section 93(5a) and (5)(c) of the Labour Act, the employee was a necessary party to the proceedings. Further, that, the architecture of the entire provisions of section 93 of the Labour Act required that a draft ruling be subjected to confirmation proceedings irrespective of whether it was in favour of the employer and against the employee, or in favour of the employee and against the employer.
It was on the basis of the reasoning of the Constitutional Court that the applicants lodged the present application on 13 April 2021.
It was opposed by the first respondent on 20 April 2021.
The applicants filed an answering affidavit on 22 April 2021. Thereafter, the applicants filed their heads on 28 April 2021 while the first respondent did so on 12 May 2021....,.
THE MERITS
The requirements for the application
A court considers the extent of the delay, reasonableness of the explanation for the delay, prospects of success and importance of the case, respondent's interest in the finality of his judgment, convenience of the court, and avoidance of unnecessary delay in the administration of justice.
However, it is trite that the main requirements for an application of this nature are the extent of the delay, the reasonableness of the explanation for the delay, and the prospects of success: see Ester Mzite v Damafalls Investments (Private) Limited SC21-18.
THE EXTENT OF THE DELAY
The Labour Court refused to confirm the proceedings on 19 March 2017. Leave to appeal was granted by that court on 9 July 2017. The appeal should have been filed by 15 August 2017.
The present application was filed on 20 April 2021.
It is common cause that this period, which is in excess of three (3) years and eight months, is inordinate.
THE REASONABLENESS OF THE EXPLANATION FOR THE DELAY
The real reason for the delay was that the applicants were prevailed upon by this Court to withdraw the appeal on 22 February 2018. The applicants withdrew the appeal because they accepted the misconception that confirmation proceedings that they sought to impugn were a nullity by reason of lack of jurisdiction by the Labour Court to confirm a draft ruling made against an employee by a labour officer.
That view was subsequently affirmed by this Court in Drum City (Pvt) Ltd v Brenda Garudzo SC57-18 at paragraphs [12] and [13].
It was, however, authoritatively jettisoned by the Constitutional Court in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 at p25.
The applicants have always been desirous to test the correctness of the judgment appealed against but for the mis-interpretation of the relevant provision of the Labour Act by this Court.
This is demonstrated by their desperate attempt, in March 2018, to appeal the confirmation in the Labour Court under the mistaken belief that it had reverted to being the decision of the labour officer.
I would have accepted the explanation on the misconstruction of the jurisdiction of the Labour Court by this Court to have been a reasonable explanation for the delay had the applicants filed the present application soon after the reasons for judgment were availed in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20, in June 2020.
The applicants, however, justified their failure to file the application soon after the Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 judgment on the COVID 19 induced lockdowns.
The endemic lockdowns resulted in the closure of court operations between 30 March 2020 and 11 May 2020 and 5 January 2021 to 1 March 2021. During this period, only urgent matters were set down, heard, and determined.
The courts were, however, in full session between 11 May 2020 and 4 January 2021 and between 1 March 2021 and the date on which the applicants filed the present application on 12 April 2021.
There was no legal impediment against the filing of the application immediately the reasons for judgment were delivered in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20.
The applicants did not proffer any reasonable explanation as to why they failed to lodge the present application during these periods.
My overall finding is, therefore, that the explanation given for the delay was unreasonable.
I agree with counsel for the first respondent, that, the applicants failed to provide a reasonable explanation for the inordinate delay.
