DISTRIBUTABLE (40)

Judgment No. SC 57/04

Civil Appeal No. 310/02

BRENNAN’S DIESEL SERVICES (PRIVATE) LIMITED

v WILLIAM MAKWARA

SUPREME COURT OF ZIMBABWE

SANDURA  JA, CHEDA JA & ZIYAMBI JA

HARARE, JULY 19 & SEPTEMBER 7, 2004

E T Matinenga, for the appellant

The respondent in person

ZIYAMBI JA: This is an appeal against the refusal by the Labour Relations Tribunal (now the Labour Court) to condone the late noting of an appeal by the appellant. The facts forming the background of the appeal are as follows.

On 9 September 1999 the respondent was dismissed from the employ of the appellant, apparently in terms of the Code of Conduct for the National Employment Council for the Motor Industry (“the NEC”). The respondent, dissatisfied with his dismissal, appealed to the NEC, which referred the matter to the Ministry of Labour for determination. The labour relations officer found in favour of the respondent and ordered his reinstatement. The judgment was delivered to the parties on 18 June 2001.

No appeal was lodged against that determination but on 27 June 2001 the managing director of the appellant wrote to the senior labour relations officer, informing him that:

“Having followed all procedures correctly under the jurisdiction of the Code of Conduct of the Motor Industry we cannot accept your determination to re-employ the complainant.”

On 30 October 2001 the senior labour relations officer wrote to the appellant’s managing director, advising him that there was no appeal in this matter pending before the senior labour relations officer, as none was filed within the stipulated fourteen days of the determination of the labour relations officer. The appellant was advised in the said letter to comply with the determination of the labour relations officer. The appellant alleges that this letter was received by it on 16 December 2001.

Nothing further was heard of the matter until the Messenger of Court attached the appellant’s property in execution of a writ of attachment on 14 February 2002 and advised that the property would be removed on 20 February 2002. This prompted the appellant to make an urgent chamber application to the Labour Relations Tribunal (“the Tribunal”) for a stay of execution and an application for condonation of its failure to note an appeal timeously.

The Tribunal dismissed the application, it being of the view that the appellant had failed to explain the inordinate delay in noting the appeal.

The appellant contended that the Tribunal erred in law, in that it failed to consider the merits of the application. In any event, there was a very good explanation for the delay which the Tribunal erred in failing to appreciate.

With regard to the delay the Tribunal said:

“Even if it is to be accepted, which it is not, that the letter of 27 June 2001 to (the) senior labour relations officer by (the) applicant was his appeal, there is no explanation as to why (the) applicant, after having been advised in October by the senior labour relations officer that there is (was?) no appeal pending before him, did not file this application in December, the month it says it received the senior labour relations officer’s letter. There was total inaction by (the) applicant until the attachment of its property by the Messenger of Court.

There being no explanation for the delay or the inaction I find that (the) applicant has failed to pass the first hurdle.

‘The law will help the vigilant but not the sluggard’ per McNALLY  JA in Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290 C-E.”

With regard to the prospects of success, the Tribunal made reference to the remarks of SANDURA  JA in Kodzwa v Secretary for Health and Anor 1999 (1) ZLR 313 at 315 F-G where he said:

“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.”

I find no fault with the reasoning of the Tribunal. There is no doubt that this was a flagrant breach of the Rules. Indeed, the determination of the labour relations officer makes reference to the fact that although the appellant was notified of the hearing date it refused to attend the hearing and the matter proceeded in the absence of the appellant.

The proper course to be adopted where a party does not accept the judgment of a court is to appeal against it to a higher court. The appellant did not say that it was ignorant of that procedure but, even if it was, the letter from the senior labour relations officer should have dispelled any ignorance in this regard. The fact that the appellant chose to ignore the advice given in the letter negates any bona fides on the appellant’s part in seeking to note an appeal. What emerges from the record is that the appellant was aware of the course to be adopted but chose not to adopt it.

I do not agree with counsel for the appellant that the appellant, by filing the letter to the senior labour relations officer, indicated its intention to appeal against the determination of the labour relations officer. Had there been any intention to appeal, the appellant would have sought to rectify matters immediately upon receipt of the letter. This, the appellant did not do and it seems quite clear that the appellant would have continued to ignore the determination had its property not been attached.

The grant of condonation by a court is an indulgence and a party seeking it must satisfy the court that “a valid and justifiable reason exists why compliance did not occur and why non-compliance can be condoned” - see Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa 4 ed at p 549. To this end, he must give a satisfactory explanation for his non-compliance with the laid down Rules. No explanation has been given as to why, accepting that the letter notifying it that no appeal was pending only reached the appellant on 16 December 2001, no action was taken by it to note an appeal until February 2002, eight days after its property was attached in execution.

The Tribunal was alive to the criteria in applications of this nature. It was of the view that the indulgence of condonation ought not to be granted in this case because of the flagrant breach of the Rules by the appellant, whatever the merits of the application might be. See Kodzwa v Secretary For Health and Anor supra.

Accordingly I find no impropriety in the manner in which the Tribunal exercised its discretion in the matter.

At the hearing before us Mr Matinenga, for the appellant, raised the point that the order of the Labour Court ought to have specified an alternative of damages in the event that reinstatement is no longer possible. This is because of the provisions of s 96 of the Labour Relations Act [Chapter 28:01] (“the Act”) (now repealed) which provided as follows:

“96 (1) Without derogation from the generality of sections ninety-three and ninety-five, a determination made in terms of those sections may provide for –

(a) back pay from the time when the dispute or unfair labour practice arose;

(b) in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee, the payment by the employer concerned to the employee or someone acting on his behalf of such amount, whether as a lump sum or by way of instalments, as will, in the opinion of the labour relations officer or senior labour relations officer concerned, adequately compensate the employee for any loss or prejudice suffered as a result of the unfair labour practice;

(c) reinstatement or employment in a job;

Provided that any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment;

(d) insertion into a seniority list at an appropriate point;

(e) promotion or, if no promotion post exists, pay at a higher rate pending promotion;

(f) payment of legal fees and costs;

(g) cessation of the unfair labour practice;

as may be appropriate.

(2) Any party to whom a determination made in terms of section ninety-three or ninety-five relates may submit for registration copies thereof, duly certified by the labour relations officer or senior labour relations officer, as the case may be, to the clerk of the magistrates court having jurisdiction in the area where the dispute or unfair labour practice arise.

(3) Where a determination is registered in terms of subsection (2) it shall, for purposes of enforcement, have the effect of a civil judgment of the magistrates court.

(4) If any determination which is registered in terms of subsection (2) is varied or set aside by the Tribunal on appeal, the clerk of the court concerned shall make the appropriate adjustment in his register."

Mr Matinenga alleged that, in terms of the then applicable (but now repealed) s 96(1)(c) of the Act, the Tribunal was obliged to grant an order for payment of damages as an alternative to reinstatement.

Subsections 91 (1) and (2) (a) and (b) of the Act (also now repealed) provided:

“(1) In determining an appeal in terms of this Part, the Tribunal may confirm, vary or set aside the determination appealed against, or substitute its own determination for the one appealed against, and may make any order as to costs.

(2) Subsections (1) to (4) of section ninety-six -

(a) shall apply, mutatis mutandis, where the Tribunal varies a determination or substitutes its own determination for the one appealed against;

(b) may, at the direction of the Tribunal, mutatis mutandis, apply to any determination made by it otherwise than on appeal.”

It will be seen that different considerations apply depending on whether or not the matter before the Tribunal is an appeal. In the case of an appeal, subss (1) to (4) of s 96 are applicable in two instances, namely, where the Tribunal varies a determination, or substitutes its own decision for the one appealed against. See Mtetwa v Business Equipment Corporation SC-25-04. In the latter, s 96 may be applicable where the Tribunal so directs.

The present matter not being an appeal, s 96(1)(c) could only apply if the Tribunal so directed. The application of the section is not peremptory in determinations made by the Tribunal other than on appeal and there is no obligation on the part of the Tribunal to direct its application. See s 91(2)(b). Normally, the use of the word “may” is taken to be indicative of the exercise of a discretion by the Tribunal, (in this case whether or not to direct the application of the proviso to s 96(1)(c)) and, where the issue of reinstatement arises, one would expect it to be apparent on the record that the possible application of the proviso was considered and the discretion of the Tribunal exercised as to whether or not to direct its application. However, in the instant case, the Tribunal having found it unnecessary to consider the merits of the application, the issue of reinstatement did not arise. In the circumstances, the Tribunal was in no position to alter the determination of the labour relations officer.

Since the appeal is against the refusal by the Tribunal to grant condonation, this Court is seized with the sole question as to whether or not condonation was properly refused by the Tribunal. If it was properly refused, we cannot amend the order of the labour relations officer, as to do so would be to adjudicate on the merits of the appeal itself, thus creating a situation where the appeal on the merits is determined through the back door, so to speak.

Having regard to my conclusion that the Tribunal correctly exercised its discretion in refusing to grant condonation, the only option now left to me is to dismiss the appeal and it is accordingly dismissed with costs.

SANDURA  JA: I agree.

CHEDA JA: I agree.

Atherstone & Cook, appellant's legal practitioners