IN
CHAMBERS
KUDYA
AJA:
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 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 para 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 Act.
She
cited the losing employer as the only respondent, purportedly in
terms of section 93(5a), 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 rehearing of the confirmation.
However,
at para [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.
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
CCZ6/20
at p25. 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 the Drum
City (Private) Limited, supra,
and held that despite the “statutory ambiguity or vagueness” in
the words “employer or other person” in section 93(5a) and (5)(c)
the employee was a necessary party to the proceedings. Further that
the architecture of the entire provisions of section 93 of the 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
PRELIMINARY ISSUE
In
her written heads of argument and at the hearing, Ms. Njerere,
for the first respondent, raised the issue of prescription as a
preliminary point.
The
first respondent did not plead prescription in its opposing affidavit
but raised it for the first time in its written heads of argument.
Ms.
Njerere
contended that, prescription, being a question of law could be raised
at any time in the proceedings.
She
argued that the applicants right of appeal and by extension the right
to sue out the present application constituted a debt as defined in
the Prescription Act [Chapter
8:11],
which was susceptible to the vagaries of prescription in terms of
section 15(d) of that Act.
It
was common cause that the period between the date on which the
applicants withdrew their appeal (22 February 2018) and the date on
which they filed the present application (12 April 2021) was in
excess of 3 years.
Mr
Mashuma
for the applicants made the contrary contention that, as the present
application was governed by the provisions of Rule 61 as read with
Rule 43, it could not be affected by prescription.
He
argued that the applicants were not claiming the right to appeal in
the same way that a litigant would sue for a debt. The right to
appeal was in existence but had not been exercised at the stipulated
time. The present application, so his argument went, was therefore
governed by the requirements for condonation and extension of time
within which to appeal and not by the Prescription Act.
The
relevant provisions of the Prescription Act that fall to be
considered in this application are section 2, 13(1), 15(a)(ii) and
(d) and 20(2). They state the following:
“2
Interpretation
In
this Act —
'debt'
without limiting the meaning of the term, includes anything which may
be sued for or claimed by reason of an obligation arising from
statute, contract, delict or otherwise.”
“13
Debts to which Part IV applies
(1)
This Part shall, save in so far as it is inconsistent with any
enactment which —
(a)
provides for a specified period within which —
(i)
a claim is to be made; or
(ii)
an action is to be instituted; in respect of a debt; or
(b)
imposes conditions on the institution of an action for the recovery
of a debt;
apply
to any debt arising on or after the 1st
January,
1976.”
“15
Periods of prescription of debts
The
period of prescription of a debt shall be —
(a)
thirty years, in the case of —
(ii)
a judgment debt;
(d)
except where any enactment provides otherwise, three years, in the
case of any other debt.”
“20
Prescription to be raised in pleadings
(2)
A party to litigation who invokes prescription shall do so in the
relevant documents filed of record in the proceedings:
Provided
that a court may allow prescription to be raised at any stage of the
proceedings.”
Rule
61 prescribes as follows:
“61.
Applications for extension of time to appeal
Save
where it is expressly or by necessary implication prohibited by the
enactment concerned, a judge may, if special circumstances are shown
by way of an application in writing, condone the late noting of the
appeal and extend the time laid down, whether by Rule 60 or by the
enactment concerned, for instituting an appeal.”
Sections
13(1) and 15(d) of the Prescription Act subordinates the provisions
and application of the Prescription Act to the provisions of any
other enactment that specifically deals with this subject matter.
Section
15(d), however, limits the period of prescription to 3 years from the
period that the debt becomes due.
The
definition of debt in the Prescription Act is of wide application. It
covers the right to sue for or claim emanating from inter
alia
a statute.
The
right that arises in these proceedings is the right to claim
condonation and extension of time to note an appeal.
The
exercise of that right is set out in Rule 61 of the Supreme Court
Rules, 2018.
In
terms of section 3 of the Interpretation Act [Chapter1:01],
a statutory instrument falls into the definition of an enactment.
The
Supreme Court Rules, 2018 are therefore an enactment, referenced in
section 13(1)(b) of the Prescription Act.
To
the extent that the right to claim condonation and extension of time
is a debt, the right to claim it falls squarely into the ambit of
Rule 61.
This
rule “imposes conditions on the institution of an action for the
recovery of (the) debt”.
It
is clear from the scheme of section 13(1) that the Prescription Act
is subordinated to the requirements of Rule 61 of the Supreme Court
Rules, 2018.
That
rule specifies the period within which the debt may be claimed by use
of the phrase “the late noting of the appeal and extend the time
laid down…for instituting an appeal.”
The
conditions imposed by the rule are demonstrable 'special
circumstances' and instituting 'an application in writing'.
It
is therefore my view that Rule 61 of the Supreme Court Rules, 2018,
is excluded from the application of section 15(d) of the Prescription
Act by the provisions of section 13(1)(b) of the same Act.
The
preliminary point would fail on this score.
Again,
the prescription argument falters on a proper construction of the
provisions of section 20(2) of the Prescription Act.
In
order to rely on prescription, the first respondent must successfully
meet two procedural requirements: It must have pleaded the point in
its opposing affidavit failing which it must have sought the leave of
the court to argue the point.
It
did not do any of these two things.
The
preliminary point is therefore improperly before me and ought to be
struck out.
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 on 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 3 years and
eight months is inordinate.
THE
REASONABLENESS OF THE EXPLANATION FOR THE DELAY
The
real reason for the delay was that 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 paras [12] and [13].
It
was, however, authoritatively jettisoned by the Constitutional Court
in Isoquant
Investments (Private) Limited t/a ZIMOCO v Memory Darikwa
CCZ
6/20 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 the Isoquant
matter, supra,
in June 2020.
The
applicants, however, justified their failure to file the application
soon after the Isoquant
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 the Isoquant
case.
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 Ms. Njerere
that, the applicants failed to provide a reasonable explanation for
the inordinate delay.
THE
PROSPECTS OF SUCCESS
The
three main factors are not individually decisive in granting the
indulgence sought by the applicants.
The
remarks of SANDURA JA in Kodzwa
v Secretary for Health & Anor
1999 (1) ZLR 313 (S) are worth repeating. He stated that:
“Whilst
the presence of reasonable prospects of success on appeal is an
important consideration which is relevant to the granting of
condonation, it is not necessarily decisive. Thus in the case of a
flagrant breach of the rules, particularly where there is no
acceptable explanation for it, the indulgence of condonation may be
refused, whatever the merits of the appeal may be.”
In
the present case, strong prospects of appeal may be the determinant
factor.
It
is common cause that the parties did not produce the consensual
agreement to the labour officer. The first respondent failed to
locate it and suggested that it must have been illegally removed from
its custody by its former Finance and Human Resources director, Owen
Murumbi, on the subsequent termination of his employment.
The
first appellant maintained such an agreement did not exist.
The
labour officer and the court a
quo
made positive findings that the agreement was in existence and that
the parties and their witnesses had appended their signatures on the
agreement.
Mr
Mashuma
argued that such a positive finding by both the labour officer and
the court a
quo
in the absence of the agreement was so outrageous in its defiance of
logic that no sensible person who had applied his mind to the
question to be decided, would have arrived at it.
He,
therefore submitted that such a finding constitutes a misdirection
which allows this Court to interfere with it.
His
contention is based on the authority, amongst others, of TM
Supermarket v Mangwiro
2004
(1) ZLR 186 (S); Reserve
Bank v Granger & Anor
SC34/01; and Zvokusekwa
v Bikita Rural District Council
SC44/15 at para [22].
Mr
Mashuma,
further contended that the failure to apply the peremptory
retrenchment procedures set out in section 12C(11)(a)(i) and (ii) and
(b)(i) and (ii) of the Labour Act [Chapter
28:01]
before its amendment by the Labour Amendment Act No.5 of 2015
rendered the retrenchment a nullity.
Counsel
for the applicants also contended that, contrary to the finding a
quo,
the acceptance of their terminal benefits could not properly
constitute a waiver of their right to challenge the termination
process.
The
contention was premised on two grounds:
(i)
The first was that the termination was a nullity and could therefore
not be waived.
(ii)
The second was that at the time they accepted the terminal benefits
they were ignorant of its effect on their right to challenge the
termination. They therefore argued that they lacked the requisite
appreciation and concomitant intention to found waiver.
Mr
Mashuma
submitted that the principle of waiver articulated in Chidziva
& Ors v Zimbabwe Iron and Steel Company Ltd
1997 (2) ZLR 368 (S) at 379 was no longer good law. This was because
that decision predated the concept of social justice and equity
embodied in section 2A of the Labour Act.
This
concept was recognized in Stanbic
Bank of Zimbabwe Ltd v Charamba
2006 (1) ZLR 96 (S); Madhatter
Mining Company v Tapfuma
SC51/14 at 15; and Delta
Beverages (Pvt) Ltd v Murandu
SC38/15 at p14.
Per
contra,
counsel for the first respondent contended that the acceptance and
consumption of the terminal packages constituted a waiver of their
right to challenge the legality of their respective terminations.
THE
LAW ON RETRENCHMENT
The
Constitutional Court authoritatively laid down, inter
alia,
that the Labour Court's jurisdiction to confirm a labour officer's
draft ruling in respect of a dispute or unfair labour practice, which
is a dispute of right, could only be invoked if the labour officer
strictly complied with all the prescribed procedural steps and
substantive requirements of
sections
93(1)(3) and 95(5)(c) in making the draft ruling.
This
principle was derived from the ratio
decidendi
of Tsvangirai
v Mugabe & Anor
2006
(1) ZLR 148 (S), which was that the action or application commencing
proceedings must be in accordance with the procedure prescribed by
law to bring the dispute before the appropriate court for it to
exercise jurisdiction to hear and determine the matter.
At
p27 MALABA CJ pertinently held that:
“This
means that a matter that is not a product of compliance with the
procedural and substantive requirements of these provisions would not
fall within the class of matters over which the Labour Court would
have jurisdiction in terms of section 93(5a) of the Act. It would not
be a matter which would be subject of the procedure for bringing such
matters to the court a
quo,
as prescribed under section 93(5a) of the Act. Bringing such a matter
to the court a
quo
under the guise of invoking the procedure prescribed in the
subsection, would not validly institute proceedings in that court in
terms of section 93(5a) of the Act. The court a
quo
would not have a valid matter over which to exercise jurisdiction.”
The
jurisdiction of a labour officer to deal with a dispute or unfair
labour practice, whether in respect of a dispute of interest or a
dispute of right is anchored in section 93(1) of the Labour Act.
The
dispute or unfair labour practice must have been properly referred to
the labour officer.
The
propriety is based on four jurisdictional factors identified as the
existence of a dispute, emanating from an employment relationship,
outside the aegis of an employment code (per section 105(5) and (6)
of the Act) and the jurisdiction of an employment council (that is
before a Designated Agent in terms of section 63(3b) of the Act) and
timeous referral.
The
Constitutional Court further held that conciliation is a compulsory
statutory process of mediation that is separate and distinct from
arbitration and adjudication.
At
p23 the Constitutional Court poignantly stated that:
“Procedures
such as the hearing of oral submissions or the production of written
submissions by the parties and the determination of matters in
dispute, typical of the adjudication process, are alien to the
conciliation process. During the conciliation process the labour
officer collects information and attempts to settle the dispute
between the parties in a friendly manner. It is neither a trial nor a
hearing”.
Conciliation
therefore constitutes the first consensus seeking step that is
actively and not passively presided over by the labour officer but is
driven by the disputants.
The
proper way of conducting conciliation, which was approved by the
Constitutional Court generally involves the four stage approach that
consists of the introduction, story-telling, dispute analysis and
problem solving.
These
stages were borrowed from the South African labour case of National
Union of Metalworkers in SA & Ors v Cementation Africa Contracts
(Pty) Ltd
(1998) 19 ILJ 1208 (LC) at para 21 (the NUMSA
case) and the suggestions of various academic writers in the field
such as Grogan: Labour
Litigation and Dispute Resolution
1st
ed Juta p113; Brand et
al Dispute Resolution
5ed Juta pp122-123, 127; and Darcy du Toit et
al Labour Relations Law a Comprehensive Guide
6ed Lexis Nexis pp117-146.
If
the properly conducted conciliation fails to achieve a settlement
within 30 days, or any further extension agreed to by the parties,
from the commencement of the attempt at settlement, the labour
officer issues a certificate of no settlement.
The
legal effect of such a certificate is that the dispute or unfair
labour practice arising from a dispute of right, by operation of law,
automatically and specifically proceeds to adjudication before the
Labour Court in terms of section 93(3) as read with section 93(5) of
the Labour Act and not to compulsory or voluntary arbitration.
Such
an application is a sui
generis
application
that is within the contemplation of section 89(1) of the Labour Act.
It
is only those disputes that involve disputes of interest for parties
engaged in an essential service that take the arbitral route.
At
pp.22 and 24 of the Isoquant
case, supra,
it was held that the draft ruling is the exclusive domain of the
labour officer that is prepared after issuing a certificate of no
settlement.
It
is based on the information collected and collated by the labour
officer during the process of conciliation.
In
either case, the draft ruling must then as “a matter of obligation”
be subject to the provisions of subs (5a) and (5b). The draft ruling
invokes the application of subs (5a) and (5b) of section 93 of the
Act. It is a provisional ruling that bears no legal force nor is it
capable of review or appeal by the parties to whom it relates.
It
only derives its life force if it is confirmed by the Labour Court in
the automatic application that is lodged by the labour officer to
that court.
It
was emphatically held at p11 of the Isoquant
judgment, supra,
that “if a labour officer engages in anything that is not
conciliation, it is a nullity.”
Confirmation
was adjudged to be a hearing in which the Labour Court examines the
correctness of the facts and the law relied upon by the labour
officer. The end result being that the Labour Court may confirm, set
aside or substitute the draft ruling.
It
is required to make a correct determination based on its own facts
and law.
My
understanding of the exposition rendered on the nature of
confirmation proceedings is that they constitute a rehearing in the
wider sense in which the Labour Court is not bound by the factual
findings and legal expositions of the labour officer.
APPLICATION
OF THE RETRENCHMENT LAW TO THE FACTS
The
founding affidavit of the applicants fails to demonstrate that the
conciliation conducted by the labour officer met the requirements set
out in the Isoquant case, supra.
The
first respondent averred in the opposing affidavit that following
upon the complaint of 31 August 2015, the labour officer issued a
certificate of no settlement by agreement of the parties on 9
November 2015. Thereafter, on an undisclosed date the applicants
filed a statement of claim while the first respondent filed its
statement of defence on 9 December 2015. The applicants then filed
their reply on 14 December 2016.
It
was common cause that the parties proceeded to file written
submissions at the behest of the labour officer so as “to enable
him to determine the matter.”
It
is clear from these pleadings that the labour officer failed to
conduct the conciliation in the manner stipulated in the Isoquant
judgment, supra.
A
properly conducted conciliation does not require a statement of
claim, response, reply and heads of argument. The labour officer does
not make a determination in making his draft ruling. These features
pertain to a hearing.
Rather,
he or she utilizes both the oral and written information and
documents that he collects and collates from the parties to make a
draft ruling.
A
draft ruling that emanates from improper procedural steps and
substantive requirements is a nullity. It is incapable of invoking
the confirmation jurisdiction of the Labour Court.
It
is unlikely that the applicants will be able to surpass this hurdle
on appeal. This will, therefore, dampen their prospects of success on
appeal.
I
would dismiss the application for condonation and extension of time
within which to appeal on this basis.
I
proceed to deal with the merits of the matter for the sake of
completeness.
In
our law, a serious misdirection on the facts amounts to a
misdirection in law. See National
Foods Limited v Magadza
S-105-95.
In
Hama
v National Railways of Zimbabwe
1996 (1) ZLR 664 (S) at 670A-D KORSAH JA explained the basis for this
principle in the following words:
“….
a misdirection is nothing more than an error in law made by a judge
in his charge to a jury. I must, however, add this rider: there can
be misdirection
as to the law
applicable to the case being tried; and there can be misdirection
as to the evidence
in the case. For an appellant to avail himself of a misdirection as
to the evidence, the nature and the circumstances of the case must be
such that it is reasonably probable that the Tribunal would not have
determined as it did had there been no misdirection; in other words,
that the determination was irrational…. The general rule of the
law, as regards irrationality, is that an appellate court will not
interfere with a decision of a trial court based purely on a finding
of fact unless it is satisfied that, having regard to the evidence
placed before the trial court, the finding complained of is so
outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question to
be decided could have arrived at such a conclusion.”
And
irrationality has subsequently been found to exist by this Court in
Barros
& Anor v Chimphonda
1999 (1) ZLR 58 (S) at 62G-H:
“If
the primary court acts upon a wrong principle, if it allows
extraneous or irrelevant matters to guide or affect it, it if it
mistakes the facts, (or) if it does not take into account some
relevant consideration”.
The
substance of the first ground of appeal meets the requirement for
turning a factual attack into a question of law. It attacks a
positive factual finding which is not based on any factual basis. The
contention made by Mr Mashuma
being that a court properly applying its mind would not have found
the consensual agreement to have been established where its very
existence was put in issue and in circumstances where the first
respondent failed to produce the agreement.
The
second ground of appeal impugns the failure of the court a
quo
to strictly apply the relevant provisions of the Labour Act that
governed the retrenchment of the applicants.
The
applicants relied on the strict construction rendered by this Court
in Stanbic
Bank of Zimbabwe Limited v Charamba
2006 (1) ZLR 96 (S) to the mandatory procedural steps and substantive
requirements prescribed in the analogous provisions of the Labour
Relations (Retrenchment) Regulations, 1990 (Statutory Instrument 404
of 1990), which were a precursor to section 12C(1) to (11) of the
Act, prior to its amendment by Act No. 5 of 2015.
I
did not hear Ms. Njerere
dispute the propriety and efficacy of these two grounds of appeal.
She,
however, pinned the respondent's case in opposition on the
principle of waiver, assailed by the applicants in the third ground
of appeal to the draft notice of appeal, arising from their
acceptance without reservation and failure to tender back the
substantial terminal benefits paid to them.
Her
submissions were firmly rooted in Chidziva
& Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S).
It
was held by the majority decision that notwithstanding the failure to
abide by the peremptory provisions of the retrenchment process, the
voluntary acceptance of the retrenchment package by the retrenchees
amounted to a waiver of the legal rights to challenge the propriety
of the retrenchment process.
A
voluntary acceptance of a terminal package is clearly knowingly made.
It
is also inconsistent with the continuation of an employment
relationship. It constitutes conduct which reasonably leads the
employer to believe that the employment relationship is over.
Thus
whether the first applicant was terminated from employment by
agreement or whether like the second applicant he was retrenched,
their deliberate acceptance of their respective terminal packages was
inconsistent with the continuation of the employment contract.
They
are unlikely to succeed in convincing this court on appeal that their
conduct did not amount to waiver.
The
Charamba
case
that they seek to rely on did not address the question of waiver. Nor
did it make any reference to the Chidziva
case, which took into account all the arguments that the appellants
will seek to rehash on appeal.
The
reliance upon the Chidziva
case a quo
cannot, therefore, be impugned on the ground that it applied the
wrong law.
In
my view, the applicants are unlikely to successfully impugn the
position of our law as expressed in the Chidziva
case, supra.
The
last ground of appeal seeks to assail the refusal a
quo
to assume jurisdiction over the non-payment of the value of shares
purportedly allotted to the first applicant by the first respondent.
It was common cause that first applicant's claim was based on a
purported verbal agreement he concluded with the managing director of
the first respondent. The first applicant averred that the managing
director agreed to allocate a portion of his own shares in the first
applicant to him. He claimed the value of these shares before the
labour officer and on confirmation a
quo.
The
court a
quo
like the labour officer held that the dispute over shares was not a
dispute of right arising from the employment contract between the
parties.
In
any event, in terms of the share subscription agreement, any dispute
arising therefrom was to be resolved by arbitration before an
arbitrator specifically appointed for that purpose whose decision
would be final and binding.
The
issue could not be resolved by a labour officer at conciliation or by
the Labour Court at confirmation.
Again,
there is no likelihood of success in respect of that ground on
appeal.
The
first respondent sought the dismissal of the application with higher
costs.
The
main basis being that the applicants were acting mala
fide
by challenging the termination of their employment without tendering
the terminal packages that they received, encashed and consumed.
While
that is a persuasive point, I am satisfied that the applicants have
always genuinely sought to appeal against the confirmation of the
draft order.
This
is not a proper case for ordering costs on the higher scale. Rather,
costs on the ordinary scale must follow the cause.
DISPOSITION
The
application fails to meet all the three major requirements for
condonation and extension of time within which to appeal.
The
applicants failed to show that, the conciliation, the draft ruling
and the confirmation were conducted in accordance with the law and
were therefore not a nullity.
In
those circumstances, the Labour Court could not assume jurisdiction
to hear the confirmation. The application would also fail on the
aspect of waiver as authoritatively set out in the Chidziva
case.
In
the circumstances, it is ordered that:
1.
The application be and is hereby dismissed.
2.
The applicants shall pay the first respondent's costs jointly and
severally, the one paying the other to be absolved.
Mashuma
Law Chambers,
applicants legal practitioners
Honey
& Blanckenberg,
first respondent's legal practitioners
