MATHONSI
J: The
applicant is not a stranger to the courts at all.
In
fact for a period spurning more than 8 years he has been a constant
visitor either to the Labour Court in Bulawayo where he has a rich
record of cross reference files dating back to 2010 or this court
where he first made an approach in 2016.
In
the present application, which he filed in this court on 4 October
2017, the applicant seeks condonation of the late filing of a review
application which he intends to launch against the judgment of the
Labour Court, per KABASA
J,
handed down on 22 May 2015, some two years and five months earlier.
What
can be gleaned from the papers placed before me is that the applicant
had a labour dispute with his employer, the first respondent, as far
back as 2005 when an attempt was made to transfer him from Bulawayo
to Harare. He managed to obtain an order of the Labour Court granted
on 1 November 2010, per MOYA-MATSHANGA J, interdicting his transfer
to Harare pending proper consultation and clarification of issues he
had raised. That provisional order was later confirmed by the same
judge on 25 February 2010 but only to the extent that transfer to
Harare was stopped.
Apparently
at some stage the labour dispute was referred to an arbitrator in
terms of the Labour Act [Chapter 28:01]. The arbitrator, who issued
an award which was not appealed against and remains extant to this
day. The applicant must have been unhappy with the outcome of
proceedings before the arbitrator but did not contest it. Instead he
decided to make a direct approach to the Labour Court seeking relief
which KABASA
J described
as “novel in nature.”
The
applicant had sought an order to the effect that a case of his
constructive dismissal had been established, that he receives
compensation and damages in line with the proposed terms of
separation being direct and indirect loss, that the notice period
follow determination under the preparatory ruling LC/MT/URA/77/10
relying on the inviolable exemption clause and that the arbitration
award of Hon. M Mpango on leave conditions at National Foods Ltd be
substituted with the conditions under Statutory Instrument 41/98.
The
Labour Court must have had serious challenges trying to decipher what
the applicant sought from that court. The relief sought was
meaningless in the extreme.
When
moving his application the applicant had argued that his was not an
appeal from a decision of the arbitrator but a direct application in
terms of section 89(2)(d) of the Act.
The
respondent contested the application on the ground that the applicant
could not approach that court in terms of that provision because that
section envisaged the existence of an application in terms of section
93(7)(1) of the Act.
That
provision relates to a case where a labour officer has either issued
a certificate of no settlement, but for some reason it is not
possible to refer the dispute or unfair labour practice to compulsory
arbitration, or the labour officer has refused to issue a certificate
of no settlement, in which event the Labour Court may, on
application, dispose of the matter in terms of section 89(2)(b).
The
court upheld the point in
limine
taken by the respondent and in a judgment delivered on 22 May 2015,
it dismissed the application.
The
dismissal triggered a chain of events, as the applicant fought
tenaciously to overturn that judgment, which culminated in this
application for condonation.
First
the applicant launched an application for leave to appeal that
judgment to the Supreme Court. The application was filed on 29 June
2015. He pursued it all the way even though it was apparently
defective. By judgment handed down on 30 November 2015, per KABASA J,
the Labour Court struck the application off the roll with costs by
reason that it was defective for want of form.
Having
come unstuck with his intended appeal, the applicant changed horses
in midstream.
He
filed an application for review in this court on 28 January 2016 in
HC216/16 more than 8 months after the judgment of the Labour Court
sought to be brought on review was handed down. The review
application was hopelessly out of time given that in terms of Rule
259 of this court's rules an application for review shall be
instituted within eight weeks of the termination of the proceedings.
Again
the applicant vigorously pursued that irregular application all the
way to the date of set down which was 21 September 2017. It was
argued before MAKONESE
J
who promptly ruled that it was improperly before the court as it was
filed out of time and struck it off the roll.
Still
the applicant would not capitulate.
On
4 October 2017 he filed the present application for condonation of
the late filing of a review application still pursuing a review of
the Labour Court's judgment handed down on 22 May 2015, never mind
that his latest effort was coming two years five months after the
judgment. That is quite an inordinate delay calling for a very
satisfactory explanation if the court were to countenance the grant
of condonation.
In
his founding affidavit, the applicant stated that he was indeed aware
that the rules require that an application for review be made within
eight weeks but the matter was initially an appeal and not a review
application. He stated further that he had to turn to review when his
application for leave to appeal was unsuccessful.
The
applicant appears to blame that on the Labour Court although he does
concede that his failure to seek condonation following the
termination of his application for leave to appeal on 30 November
2015 was owing to his “misunderstanding of the rules.”
Thereafter
the applicant's story becomes muddled and confused.
He
takes us on a journey of his trials and tribulations in the Labour
Court even before the judgment sought to be impugned was handed down,
blaming everything that went wrong on the Labour Court.
Regarding
the merits of the review itself he stated in paragraph 14 of his
founding affidavit:
“14.
The procedure adopted by the 2nd
respondent to threaten a negative result anterior to hearings is
reviewable on basis of explicit bias. The failure to deal with a
preliminary point on two consecutive times is an irregularity that
renders the eventual outcome incompetent. There was no legal basis of
refusing jurisdiction under section 89(2)(d) of Act and it was
irregular to refuse jurisdiction and request domestic remedies having
already granted application and invited merits. The procedure adopted
by the court a
quo
to take a preliminary point repeatedly and to change course of
hearings without substantive application is not provided for in the
rules------.”
There
is a regrettable habit among Zimbabweans especially self- actors,
which the above passage betrays, that if you compile a list of words
and arrange them into long-winding sentences even if they are
unrelated then somehow the group will, merely by proximity, translate
into something meaningful and that a valid point will just emerge on
its own.
I
say so because not only is the foregoing passage meaningless, it also
does not commend the applicant's case as meritable at all.
What
the Labour Court did in the judgment sought to be taken on review was
to hold that there was no legal foundation for the applicant to make
an application to it seeking an order inter
alia
that he had been constructively dismissed from employment and
awarding him damages.
The
applicant had advanced the argument that he was entitled to have
direct access to that court in terms of section 89(2)(d) of the
Labour Act.
It
is important to consider that the labour dispute, or is it unfair
labour practice, had previously been referred to and adjudicated upon
by an arbitrator. The applicant was unhappy with the arbitral award
but did not contest it.
In
terms of section 98(10) of the Act:
“An
appeal on a question of law shall lie to the Labour Court from any
decision of an arbitrator appointed in terms of this section.”
The
applicant missed the train when he did not note an appeal and then
sought to make a direct approach ostensibly in terms of section
89(2)(d).
That
section provides:
“(2)
In the exercise of its functions, the Labour Court may in the case of
an application other than one referred to in paragraph (b) or (c) or
a reference, make such determination or order or exercise such powers
as may be provided for in the appropriate provisions of the Act.”
The
court ruled that as the applicant was raising an unfair labour
practice, his case was already provided for in section 93 and he was
required to seek redress through conciliation by a labour officer.
If that failed the matter had to be referred to arbitration and if
unhappy with arbitration he would appeal to the Labour Court in terms
of section 98(10). It decided that procedurally it was incompetent
for the applicant to make an approach to it the way he had done.
In
my view that reasoning is sound.
That
then brings me to what the court has regards to an application for
condonation.
The
position of the law is that whenever a litigant realizes that he or
she has not complied with a rule of court he or she must apply for
condonation without delay. If the litigant does not do so, he or she
is required to give an acceptable explanation, not only for the delay
in the filing of the application, but also for the delay in seeking
condonation. What calls for some acceptable explanation is not only
the delay in the application but also the delay in seeking
condonation meaning that there are two hurdles to be overcome in such
an application. See Ngirazi
v
Saurosi
and Another
HB84-18; Viking
Woodwork (Pvt) Ltd
v Blue
Bells Enterprises (Pvt) Ltd
1998 (2) ZLR 249 (S) at 251C-D; Salooje
and Another NNO
v Minister
of Community Development
1965 (2) SA 135 (A) at 138H.
The
applicant's explanation for the failure to file a review
application within eight weeks is that, although he was indeed aware
of the eight weeks requirement, he had to first try his luck at
seeking leave to appeal. When that failed he had to fall back on a
review application. After that he misunderstood the rules.
In
my view that is not an acceptable explanation at all.
Condonation
is not granted and is indeed not available because a party has failed
in his or her pursuit of another remedy and because he or she would
not want to accept his fate he or she would rather try luck
elsewhere.
Apart
from that, the applicant has not explained the delay in seeking
condonation itself. To the extent that he says he was aware of the
dies
inducae
of eight weeks he then has to give an acceptable explanation as to
why he took years to approach the court seeking condonation. This is
a litigant who had to wait until his initial application was
dismissed as being improperly before the court to seek condonation.
If
that finding appears harsh to the applicant then I have to consider
whether there is any merit in the proposed application itself. This
is because it is settled in our jurisdiction that where the
explanation for the delay is unsatisfactory then the prospects of
success of the application have to be very high before the court can
exercise its discretion to condone the non-compliance. That is the
point eloquently expressed by BEADLE
CJ in
Kuszaba-Dabrowski
et uxor
v Steel
N.O.
1966 RLR 60 (AD) at 64:
“----
the more unsatisfactory the explanation for the delay, so much
greater must be the prospects of success of the appeal be, before the
delay will be condoned and the converse must of course be equally
true, the more satisfactory are the explanations for the delay, the
more easily will the court be inclined to condone the delay provided
it thinks there is prospects of the appeal succeeding.”
See
also Maheya
v Independent
African Church
2007 (2) ZLR 319 (S) at 323 B-C; Musemburi
and Another
v Tshuma
2013 (1) ZLR 526 (S).
I
have stated that the decision by the Labour Court to refuse the
application on the procedural irregularity of the applicant's
direct approach to it when the Act requires the matter to commence by
conciliation was sound indeed. In fact this is a case which had not
only be conciliated before it had also been arbitrated on. The
applicant was therefore inviting the court to entertain the matter
not as an appeal, he having lost that opportunity when he did not
appeal, but as a court of first instance.
It
was untenable.
The
Labour Court is a creature of statute and cannot do that which it is
not empowered to do by the statute creating it.
I
would refuse to condone the applicant's failure to comply with the
rules on those grounds.
Mr
Chamunorwa
for the respondent made an interesting point relating to
jurisdiction. He submitted that this court does not have jurisdiction
to review decisions or proceedings of the Labour Court which occurred
before the promulgation of the Constitution of Zimbabwe (Amendment)
(No.1) Act, 2017. Prior to that amendment of section 174 of the
Constitution, the Labour Court was not subordinate to the High Court.
The original section 172 did not make the Labour Court subordinate
to the High Court and yet in terms of section 171(b) this court was
conferred review jurisdiction in respect of courts subordinate to it.
Section
171(1)(b) provides:
“The
High Court has jurisdiction to supervise Magistrates Courts and other
subordinate courts and to review their decisions.”
It
is only section 5(2) of Act No.1 of 2017 which now provides that:
“For
the purposes of this section and section 171(1)(b) it is declared for
the avoidance of doubt, that the Labour Court and Administrative
Court are courts subordinate to the High Court.”
In
my view that amendment was brought about by a realization that there
was a doubt arising from the wording of section 171(1)(b) which
excluded the Labour Court. It sought to remove that doubt.
Mr
Chamunorwa's
argument is therefore attractive indeed.
However,
it does require any further discussion because I have already
concluded that the applicant does not make a case for condonation.
It has not merit.
In
the result, the application is hereby dismissed with costs.
Calderwood,
Bryce Hendrie and Partners'
1st
respondent's legal practitioners
