Buchisa Mwalongo v Cavendish University Zambia Limited (COMP/ORCLK/724/2023) [2024] ZMHC 173 (18 June 2024)

IN THE HIGH COURT FOR ZAMBIA COMP /IRCLK/ 724 / 2023 AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: ' · ---- H } / . . ~ !fl 11 BUCHISA MWALONGO APPLICANT AND CAVENDISH UNIVERSITY ZAMBIAN LIMITED RESPONDENT Coram: M. S. Ngo ma, J this 1 gth day of June, 2024 For the Complainant: Mr. M. Ntanda of Messrs Reagan Blankfein Gates Legal Practitioners For the Respondent: Miss H. C. Chileshe of May and Company RULING Legislation referred to: 1. Industrial and Labour Relations Act, Cap 269 of the Laws of Zambia 2. Industrial and Labour Relations Amendment. Act No. 8 of 2008 Cases referred to: 1. Zambia Consolidated Copper Mines Limited Vs Elvis Katyamba and 46 Others SCZ Judgment No. 1 of 2006. 2. Winnie Zaloumis (suing in her capacity as acting National Secretary for the Move~ent for Multiparty Democracy) Vs Felix Mutati and 3 Others 2016 (2) ZR 183. f 3. Edward Jack Shamwana Vs Levy Patrick Mwanawasa (1993 -1994) ZR 149. 4. WEA Roberts LTD-vs- Visions Channel 4 Limited (1983) 2 All ER 289. 5. Augustine Tembo vs. First Quantum Minerals Limited - Mining Division 5CZ 18/94/2015. 6. Macarthur Mudenda vs Ericson AB Zambia (Appeal No. 20 of 2015). 7. Zambia Consolidated Copper Mines vs Jackson Munyika Siame and 33 Others (2004) ZR 193 (5. CJ. INTRODUCTION 1. This appeal emanates from the ruling of the honourable Registrar of this court made on 23 rd November, 2023 refusing the respondent's application to set aside her ruling of 10th July 2023 granting leave to the complainant to file complaint out of time. BACKGROUND 2. The brief facts leading to this appeal are that the parties entered into a contract for/of service some time in 2019. The said contract was, on 21 st February, 2023, terminated by the respondent. Aggrieved by the termination of the contract, the complainant commenced these proceedings against the respondent seeking, among other reliefs, damages for unfair, unlawful and wrongful dismissal, by notice of complaint filed on 17th July, 2023. R2 3. Prior to the commencement of these proceedings, the complainant applied for and was, on 10th July 2023, granted leave to file complaint out of time by the honourable Registrar of this court. 4. The respondent, on 20th September, 2023 applied to the Registrar to set aside her ruling of 10th July 2023 5. Two grounds were advanced. Firstly, that the application was made ex-parte as opposed to inter-parte and, as such, the respondent was denied an opportunity to be heard. 6. Secondly, that the said application was not properly before the court as it was filed after the expiration of the 90-day period prescribed by section 85(3) of the Industrial and · Labour Relations Act ("The Act"). The respondent also applied for an order to stay execution/proceedings pen(\ing determination of the application to set aside the ruling of 10th July, 2023. 7. By ruling dated 23rd November 2023, the Hon. Registrar dismissed the application. She opined that although section 85 of the Act allows the court to extend the time within which to file a complaint out of time, · the time limit within which to file an application for leave to file complaint out of time was not stated. R3 8. The Registrar rejected the argument that the complainant's application for leave to file complaint out of time ought to have been determined inter-parte. She held that "Section 85 (3) of the Act merely gives a litigant an opportunity to commence a matter before court. There is no provision under any law that requires a litigant to consult or engage the other party before making an application for leave to file complaint out of time." 9. Dissatisfied with the ruling, the respondent appealed to a Judge in chambers. WRITTEN ARGUMENTS IN SUPPORT 10. In their skeleton arguments filed on 8 th November, 2023, the respondent's advocates sought to impugn the ruling granting leave, firstly, on the ground that it was granted on an ex-parte application when it ought to have been heard inter-parte. It was also argued that the complainant did not meet the criteria for obtaining the ruling ex-parte as he did not demonstrate that the application was urgent _and hearing it inter parte would render it nugatory by the time it is heard. 11. The respondent also submitted that .the complainant's application for leave to file complaint out , of time should have been filed before the expiration of the 90-day period provided in section 85 R4 (3) of the Act. In support of this submission, reliance was placed on Zambia Consolidated Copper Mines Limited Vs Elvis Katyamba and others1 where, according to counsel, it was held that an application to enlarge time has to be made before the expiry of the 90-days period. 12. Counsel went on to argue that even assuming the foregoing arguments were wrong, leave to file notice of complaint out of time should still not have been granted as the application was devoid of merit because it was not based on allowable situations, being that the complainant was still pursuing administrative channels and hence could not file his complaint within the allowable time. For this submission, reliance was placed on the Katyamba case 1 . It was contended that the complainant's submission that the delay in commencing this action premised on the fact that he had to organize finances so as to engage counsel to pursue this matter on his behalf does not fall within the scope of actions that suspend the mandatory period as it was not an 'administrative channel' falling within the premise of the Act. Further, that the complainant was a lawyer by profession, hence he had the capacity . to navigate legal procedures and should have instituted the action instead of waiting for his financial status to improve so that he could afford to hire an advocate. RS 13. The other submissions on behalf of the respondent relate to the stay of these proceedings pending the determination of this appeal. I shall revert to this issue later for reasons indicated below. WRITTEN ARGUMENTS IN OPPOSITION 14. In opposing the respondent's appeal, it was submitted on behalf of the complainant that the Registrar could not be faulted for hearing the application for leave to lodge complaint out of time ex-parte as the respondent's right to be heard only arose when the complaint was actually filed in court. 15. It was further submitted that the authorities of Winnie Zaloumis (suing in her capacity as acting National Secretary for the Movement for Multiparty Democracy) Vs Felix Mutati and 3 Others2 and Edward Jack Shamwana vs Levy Patrick Mwanawasa3 which were heavily relied upon by the respondent can actually be distinguished from the present case as they dwelt with injunctions hence the principles discussed in there are not necessarily applicable to all ex-parte applications. 16. Counsel for the complainant submitted that the Respondent's application to set aside the ruling obtained ex-parte lacks merit as it had not satisfied the requirements for setting aside an ex-parte order as R6 elucidated in the decision of the Court of Appeal of England in WEA Roberts Ltd-vs-Visions Channels 4 Limited4 • These requirements include failure to disclose some relevant facts or documents; that the order was obtained mala fide; and that the execution of the ex-parte order has caused the respondent to suffer prejudice. 17. Counsel for the complainant also submitted that there was no time limit for filing an application for extension of time within which to file a notice of complaint contrary to the respondent's counsel's submission that the said application had to be filed within the mandatory 90-day period. The decision in the case of Augustine Tembo vs First Quantum Mineral Limited - Mining Division5 was called upon in aid of this submission. On page J9 of the Judgment in that case, the court dispelled the notion that its decision in the Katyamba · case 1 was that an application to file a complaint out of time should be lodged before the mandatory period expires. 18. It was also the complainant's submis.sion that whereas prior to the 2008 amendment of the Act, the pre condition for application for extension of time was the exhaustion of administrative channels, post the amendment, if a complainant provides reasons satisfi~.ctory to the court, and these reasons occurred before the mandatory period expired, the court may R7 suspend the mandatory period. Furthermore, if the complainant expeditiously files the application once the hindering reasons cease, the application is deemed meritorious. 19. In casu, it was contended that the complainant in seeking leave to file complaint out of time, attested to financial constraints and efforts to amicably resolve the matter with the respondent, which efforts he had been making from the time of termination of his contract until receipt of the respondent's response to the formal letter of demand served on it. It was submitted that these are meritorious reasons which the Registrar considered to exercise her discretion in favour of the complainant. HEARING 20. At the hearing of the appeal, counsel for the respondent, Ms. Chileshe, said she would rely on the affidavit deposed to by Lillian Maswabi, dated 8 th November, 2023 together with the skeleton arguments of even date. 21. In opposition, Mr. Ntanda, counsel for the complainant, equally said he would rely on the affidavit in opposition filed on 8 th December, 2023, the list of authorities and skeleton arguments of even date. He, notwithstanding, proceeded to make oral submissions in a bid to augment his written arguments. The oral submissions turned out R8 to be a repetition of what was contained in his written submissions. As such, I shall not repeat them here. ANALYSIS AND DECISION 22. I have considered the application and the arguments filed by the parties for which I am grateful. The appeal relates to Section 85 (3) of the Act, which, for ease of reference, I reproduce below: "The Court shall not consider a complaint or an application unless the complainant or applicant presents the complaint or application to the Court - (a) within ninety days of exhausting the administrative channels available to the complainant or applicant; or (b) where there are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided that (i) upon application by the complainant or applicant, the Court may extend the period in which the complaint or · application may be presented before it; R9 and the Court shall dispose of the matter within a period of one year from the day on which the complaint or application is presented to it." 23. The issues for determination in this appeal, in my view, and simply put, are whether the Hon. Registrar should have heard the application for leave to file complaint out of time inter-parte as opposed to hearing it ex-parte; whether the said application itself was out of time; and whether the application was meritorious. Whether the application for leave to file complaint out of time should have been heard inter-parte as opposed to hearing it ex-parte. 24. The authorities cited by the respondent to support its submission that a court that makes an ex-parte order may set it aside cannot be faulted as, indeed, that is the legal position. Neither can the criteria governing the grant of ex-parte applications as discu~sed in the Winni _ Zaloumis case2 and the Shamwana Vs Mwanawasa case3 be faulted. The question is whether the law as argued by the respondent is applicable to the facts of this case. RlO 25. None of these authorities were on all fours with the present case as whereas the authorities cited dealt with actions that were at the time already in court, in this case, the application, by its nature, was made prior to commencement of the action. Hence, strictly speaking, at the time of the application, no action existed against the respondent. As the Hon. Registrar observed, section 85(3) of the Act merely gives a litigant an opportunity to commence a matter in court and that there is no provision under any written law that requires a litigant td consult or engage the other party before making an application for leave to file complaint out of time. 26. Further, as submitted by the complainant's advocates, the authorities cited by the respondent under this head dealt with injunctions whereas the nature of the matter at hand is different and, in my view, it is inappropriate to call upon a court to consider how the application will substantively affect the interests of a person not party to these proceedings. 27. In my opinion, the Hon. Registrar was on firm ground when she refused the respondent's submission that the application for extension of time to file notice of complaint out of time should not have been heard ex parte. , Rll Whether the Application for leave to file notice of complaint was out of time. 28. It was argued on behalf of the respondent that the application for leave to file notice of complaint out of time should have been filed within the 90-day period provided for in Section 85 (3) of the Act. In this regard, I have considered the Katyamba case 1 and the Macarthur Mudenda vs Ericson AB Zambia case6 relied upon by Counsel to support this submission and have not seen anything that backs this argument. I agree with the complainant's submission that although the latter case dealt with section 85(3) of the Act, the court did not pronounce itself on the same due to the manner in which it was presented before the court. 29. I have examined section 85(3) of the Act and have to agree with the Hon. Registrar that this section does not give any time limit within which to file an application for leave to file complaint out of time. I am fortified by the holding in Zambia Consolidate<t Copper Mines Vs Jackson Munyika Siame and 33 Others7 on J9 of its Judgment that: "We are satisfied that although section 85(3) of the Industrial and Labour Relations {Amendment) Act introduced time limit on lodging complaints, this R12 amendment did not state any time limit for application for leave. Our view therefore is that the amendment never took away the discretion of any court to allow deserving litigants to lodge complaint out of time ..... ". (underlining mine for emphasis) Whether the application was meritorious. 30. I shall now consider the argument that even assuming the submission that the application should have been heard inter-parte as opposed to ex-parte is wrong; and even assuming the submission that the application ought to have been filed within the 90-day period is also wrong, leave to file complaint out of time should not have been granted as there were no justifiable reasons advanced by the complainant for the delay in filing the notice of complaint. It was submitted that the complainant's application was premised on the fact that he had to organise finances so as to engage counsel to pursue the matter on his behalf and that this reason does not fall within the scope of actions that suspend the mandatory period as described in the Katyamba case 1 nor is this ar:1 administrative channel that falls within the premises of the Act. The summary of the submission is that even without being legally aided, the complainant could have instituted the action with help from registry staff at the court. R13 31. Further, that as a lawyer himself, the complainant had the capacity to navigate legal procedures. 32. In opposition, it was submitted on behalf of the complainant that the reasons for the delay need not be 'administrative channels'. That it is sufficient if an applicant provides reasons satisfactory to the court and these reasons occurred before the mandatory period expired. 33. The Supreme Court, in the case of Augustine Tembo Vs. First Quantum Minerals Limited - Mining Division5 , on which the complainant relied in support of his submission, explained the effect of Section 85 (3), as amended, as follows: "There is a significant change in the law in that the pursuance of redress through administrative channels is no longer the subject of the proviso. Now, even if it takes years to exhaust the administrative channels available, the mandatory period only begins to run when the last channel has been exhausted. The section, however, has still retained the proviso. This time, the grounds upon which an Applicant may apply for extension of time under the proviso are not stated. We think, though, that the section now acknowledges that an Applicant, be it one who has no administrative channels to exhaust or one who has exhausted such R14 channels, may for some reason fail to file their complaint within the mandatory period. Hence, the proviso caters for such an Applicant; and allows them to apply for extension of time, giving the reasons that prevented them from filing their complaint within the mandatory period ... So that, if the Applicant gives reasons that are satisfactory to the court and it is established that those reasons occurred before the mandatory period had expired, that will have the effect of suspending the mandatory period; and if the Applicant does not unduly delay to file his application from the time that those reasons ceased to prevent him from doing so then his application will be meritorious. But if it is established that the reasons given, good as they may sound, only arose after the mandatory period had expired, then again, the court cannot extend the mandatory period which expired. 34. From the above, two things stand out for me as regards what needs to be done before a court can exercise its discretion to extend time within whi~h an Applicant may_ file his complaint beyond an expired mandatory period, and these are: (i) the Applicant must have applied for leave to file the complaint out of time; and (ii) the Applicant must advance cogent reasons explaining his delay, , and such reasons must have been in existence before the mandatory period expires and not only after RlS the mandatory period expires. The procedure set out in the proviso to Section 85 (3) above, is clearly that an Applicant seeking an extension of time within which to file his complaint must make the appropriate application to the court. It is in that application that the Applicant will tabulate the reasons for his delay and accord the court the opportunity to determine whether or not to exercise its discretion in favour of the application. 35. The respondent has argued that financial constraints to engage legal representation is not justifiable as the complainant could have instituted the action even without legal representation considering that he himself is a lawyer, and also bearing in mind that the registry staff is helpful to litigants to ensure substantial justice is done. The respondent's contention has some merit when looked at in isolation. However, when considered together with the other reason advanced that the complainant made an effort to amicably resolve the matter with the respondent as demonstrated by the letter of demand dated 30th May 2023 and did not :feceive a substantiv~ response other than a letter dated 31 st May, 2023 stating that the letter of demand was receiving attention, it is easy to see why the Hon. Registrar would have exercised her discretion to grant the leave sought by the complainant. R16 36. Further, as stated in the Augustine Tembo case5 the reasons advanced must have existed before the expiration of the 90-day mandatory period. The respondent has not advanced any argument that these reasons, in fact, did not exist before the expiration of the mandatory period. 37. The record shows that by letter dated 21 st February, 2023, the respondent gave the complainant 30 days' notice to terminate the contract. The effective date of termination is, therefore, 21 st March 2023. Consequently, the 90-day period runs from 22nd March 2023 to 22 nd June 2023. The complainant's advocates' letter of demand dated 30th May 2023 and the response to it dated 31 st May 2023 were both within the 90-day period. I must mention that not much has been indicated relating to the financial constrain ts to enable me determine whether or not these financial woes existed before the expiration of the mandatory period. 38. However, since the complainant app·ointed advocates and instructed them to write a letter of demand, which they did within the mandatory period, it can be surmised that if these financial constraints did, indeed, exist, they existed before the expiration of the mandatory period. R17 39. In view of the foregoing, I see no reason to disturb the decision of the Hon Registrar as I am satisfied that she exercised her discretion judiciously to extend the time within which to file notice of complaint. As such, the appeal has failed. 40. I now return to the application to stay these proceedings only to indicate that I consider it otiose since the appeal has failed. Therefore, barring a further appeal, this matter ought to be set down for trial. In this regard, parties are invited to a scheduling conference to be held on 17th July 2024 at 08:30 hours. CONCLUSION In the light of the foregoing, the appeal 1s dismissed for lack of merit. Leave to appeal is granted. Hon. Lady Justice M. S. Ngoma HIGH COURT JUDGE R18