Martin Jongwe v National Foods Limited and Labour Court (Bulawayo - Hon Kabasa)

The applicant had a long-running labour dispute with National Foods Limited dating back to 2005 regarding an attempted transfer from Bulawayo to Harare. After various proceedings, including obtaining an interdict against the transfer in 2010, the dispute was referred to arbitration. The arbitrator issued an award which was not appealed. Instead of appealing the arbitral award under section 98(10) of the Labour Act, the applicant approached the Labour Court directly seeking orders for constructive dismissal and damages. On 22 May 2015, Kabasa J dismissed the application, ruling it was procedurally incompetent as the applicant could not bypass the statutory procedure. The applicant first sought leave to appeal (dismissed on 30 November 2015), then filed a review application in January 2016 (struck off on 21 September 2017 for being out of time). On 4 October 2017, the applicant filed an application for condonation of the late filing of a review application, seeking to review the Labour Court judgment delivered two years and five months earlier.

• Whether condonation should be granted for the late filing of a review application filed more than two years after the judgment sought to be reviewed
• What constitutes an acceptable explanation for delay in filing both the review application and in seeking condonation
• Whether the proposed review application had merit, particularly regarding the procedural competence of approaching the Labour Court directly under section 89(2)(d) instead of appealing the arbitral award under section 98(10)
• Whether the High Court had jurisdiction to review Labour Court decisions made before the 2017 Constitutional amendment (obiter consideration)

The application for condonation was dismissed with costs

For condonation to be granted for late filing of a review application, an applicant must provide an acceptable explanation not only for the delay in filing the application, but also for the delay in seeking condonation. Where the explanation for delay is unsatisfactory, the prospects of success of the intended application must be very high before the court will exercise its discretion to condone non-compliance. A party's failure to pursue one remedy (such as an appeal) does not constitute an acceptable explanation for the late pursuit of another remedy (such as review). In labour law matters, where an arbitrator has issued an award, the proper procedure is to appeal to the Labour Court under section 98(10) of the Labour Act, not to make a direct application to the Labour Court under section 89(2)(d). The Labour Court, as a creature of statute, cannot exercise jurisdiction beyond that which the statute creating it has conferred.

Mathonsi J made observations regarding jurisdiction, noting that counsel for the respondent raised an interesting argument that the High Court did not have jurisdiction to review Labour Court decisions made before the 2017 Constitutional amendment. Prior to the amendment of section 174, the Labour Court was not explicitly subordinate to the High Court, and section 171(1)(b) conferred review jurisdiction only over "courts subordinate to" the High Court. The 2017 amendment to section 171(1)(b) now explicitly declares that the Labour Court and Administrative Court are subordinate to the High Court. The judge noted this amendment was likely brought about by recognition of the doubt arising from the original wording, but declined to discuss the point further as the application failed on other grounds. The judge also made critical observations about the regrettable habit of self-actors compiling "lists of words" arranged into "long-winding sentences" that are meaningless, particularly when attempting to articulate grounds for review.

This case reinforces important principles regarding condonation applications in Zimbabwean law. It demonstrates that: (1) a party must provide acceptable explanations for both the initial delay and the delay in seeking condonation itself; (2) failure in one remedy does not justify late resort to another remedy as grounds for condonation; (3) where the explanation for delay is unsatisfactory, the prospects of success must be very high for condonation to be granted; (4) parties must follow statutory procedural requirements, particularly in labour matters where appeals from arbitral awards must be noted under section 98(10) of the Labour Act rather than attempting direct access to the Labour Court; and (5) courts will not condone attempts to circumvent statutory procedures. The case also briefly touches on the jurisdictional question regarding the High Court's review powers over the Labour Court before the 2017 Constitutional amendment.