Mable Musongole Mbaya v ZESCO Limited (2025/HPIR/0071) [2023] ZMHC 97 (5 August 2023)

Rl IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction} BETWEEN l~~ MABLE MUSONGOLE MBAYA 3= AND ZESCO LIMITED 2025/HPI R/0071 COMPLAINANT RESPONDENT Before: Hon. M. M. Banda 01' 5th August, 2025 For the Complainant Ms. S. N. Musonda - Messrs Ka/okoni and Company For the Respondent: Ms. S. Siamutwa and Mr. W. Sakutadika - In house Counsel RULING Cases referred to: 1. Tiger Animal Fees v Collins Bowa..and 7 others 2. ZESCO Limited v Ntalasha Mutate Appeal No. 52 of 2024 3. Becker v Noel (1971) 2 ALL E. R. 1248 4. Twampan~.,Mining Co-operative Society Limited v Storti Mining Limited SCZ Judgment No. 20 of 2011 5. Gerald Chilumba v ZESCO Limited Appeal No. 106 of 2014 6. Edward Chilufya and 94 Others v Konkola Copper Mines Plc SCZ Appeal No. 99 of 2015 7. Zambia Consolidated Copper Mines v Elvis Katyamba SCZ No. 1 of 2006 8. Antonio Ventriglia and Manuela Ventriglia v Finsbury Investments Limited Appeal No. 2 of 2019 9. Donovan v Gwetoys Ltd SJ No. 46 of 2016 10. Kalunga Chansa v Evelyn Hone College CAZ Appeal No 134 of 2019 11 . Birkett v James (1977) 2 ALL E. R. 801 12. Bank of Zambia v Al Shams Building Materials Company Limited (CAZ/08/430/2023) 13. Goodfellow Hamainza v Inda Zambia Bank Limited Appeal No. 131/2016 (S. C.) 14. Buchisa Mwalongo v Cavendish University Zambian Limited COMP /IRCLK/ 72412023 . 15. Cavendish University Zambian Limited v Buchisa Mwalongo Appeal No. 238/2024 16. Zambia National Commercial Bank Pie v Martin Musonda and 58 Others Selected Judgment No. 24 of 2018 R2 Legislation referred to: 1. The Constitution of Zambia (Amendment) Act No. 2 of 2016 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia 3. The High Court Rules Chapter 27 of the Laws of Zambia INTRODUCTION 1. This is a Ruling on the Respondent's application through Summons for an Order to Set Aside Ex - parte Ruling granting Leave to File Complaint Out of Time dated 7th March, 2025. The Application was made pursuant to section 85A(d) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia and Rule 55 of the Industrial Relations Court Rules, also of Chapter 269 of the Laws of Zambia. The following grounds were advanced for the Court's consideration: i. ii. That the Ruling was given without affording the Respondent an Opportunity to heard; That the Complainant's ground for dismissal was not subject to any administrative channels as such not warranting any inordinate delay in bringing its action before this Honourable Court; iii. That the Complainant's matter is statute barred. BACKGROUND 2. The Complainant · commenced an action against the Respondent on 10th March, 2025 after s~e was granted leave ex-parte, through a Ruling dated 7th March, 2025. The Ruling came after the Complainant sought leave to file her Notice of Complaint out of time through an application filed into Court on 20th February, 2025. R3 RESPONDENT'S AFFIDAVIT EVIDENCE 3. In support of the application, the Respondent filed an affidavit deposed by Mwape Simalambo Siamutwa, a Legal Officer under the employ of the Respondent Company. She averred that the ex parte order, through Ruling dated 7th March, 2025, granting leave to the Complainant to file her Complaint out of time was improperly issued as the Respondent was not given an opportunity to be heard. She indicated that the law permits for ex-parte orders to be discharged where a party who is prejudiced by it is not given an opportunity to be heard. 4. Ms. Siamutwa described as untrue the reason advanced by the Complainant for delaying to bring her action alleging that the Complainant only engaged the Respondent for negotiations on 17th November, 2022, some 107 days after her dismissal. That this fell outside the 90 day period permitted at law and made the action statute barred. She stated that even if discussions had commenced immediately after the Complainant was dismissed, Clause 5.25 of her Conditions of Service for non-represented employees, does not afford her administrative channels. She also pointed out that negotiations did not equally stop time from running. 5. It was averred that the Complainant has failed to account for the 90 day period and to give this Court any cogent reason justifying her filing an application seeking leave to file complaint out of time after 2 years and 7 months. That this was a proper case for this Court to exercise its discretion to revoke leave granted ex-parle and to set aside the Ruling for irregularity or being statute barred. R4 COMPLAINANT'S AFFIDAVIT EVIDENCE 6. By way of opposing the Respondent's application, the Complainant averred in her affidavit in opposition that she did give reasons for the delay when she sought leave to commence her action out of time. That leave was granted by this Court in the interest of justice and that there was no law that prevented such application from being made ex-parte. 7. The Complainant also stated that at the time of filing her application, there were no proceedings on the Court's record or a Respondent to be given an opportunity to be heard. She referred to this Court's unfettered jurisdiction and pointed out the failure by the Respondent to demonstrate the prejudice it suffered flowing from her being granted leave. RESPONDENT'S SKELETON ARGUMENTS 8. It was the Respondent's argument that before leave to file a complaint out of time is granted, a Registrar has to abide by the principle audi alteram partem ("listen to the other side" or "let the other side be heard as well"). That this was in addition to the need to give reasoned Rulings for the exercise of a discretionary power. The case of Tiger Animal Fees v Collins Bowa and 7 others1 was cited as an authority to argue that the Respondent should have been given an opportunity to be heard. That since the Ruling fell short of the requirements set out in Order 30 Rule 6A of the High Court Rules, Chapter 27 of the Laws of Zambia, the ex-parte amounts to a 'no-decision' or a nullity and ought to be set aside by this Court. This Court was referred to the case of ZESCO Limited v Ntalasha Mutale2 which guides on instances when ex-parte RS applications are suitable and the case of Becker v Noel3 pronouncing on a court's inherent jurisdiction to revoke leave granted ex-parte. It was thus argued that the Ruling of 7th March, 2025 was caught up by the authorities and ought to be set aside. 9. As regards the conditions under which applications for extension of time ought to be made, the Respondent relied on the case of Twampane Mining Co-operative Society Limited v Storti Mining Limited4 . It was submitted that the Complainant had not provided any good reason in her application for approaching the Court after 2 years and 7 months post the 90 day period set at law and reiterated the facts surrounding the alleged negotiations. 10. This Court was referred to the cases of Gerald Chilumba v ZESCO Limited5 and Edward Chilufya and 94 Others v Konkola Copper Mines Plc6 to support the Respondent's argument that leave to file complaints out of time is not granted as a matter of right and that litigants ought to be vigilant. That the Complainant slept on her rights and the Respondent ought not to be prejudiced for her own inaction. Further, that the delay in filing the Complainant was not only inexcusable but inordinate. 11. The Respondent went on to highlight the position at law as stated in the Twampane Mining Co-operative Society Limited4 case to argue that negotiations do not stop time from running. That litigants are put on notice that even when engaging in ex curia settlements, there was need to prepare for any eventuality. 12. It was further argued that this matter was statute barred for breaching the clear provisions of section 85(3) of the Industrial and Labour Relations Act as amended by Act No. 8 of 2008 which demands that Complaints should be filed within 90 days with the case of Zambia Consolidated Copper Mines v Elvis Katyamba7 R6 being cited as an authority that matters brought outside the statutory period should not be entertained. Further reliance was placed on the cases of Antonio Ventriglia and Manuela Ventriglia v Finsbury Investments Limited8 on the aspect of jurisdiction of a court and Donovan v Gwetoys Ltd9 which bemoans subjecting defendants to stale actions. 13. It was for the aforesaid reasons that this Court was urged to set aside the Ruling. COMPLAINANT'S SKELETON ARGUMENTS 14. The Complaint began her argument by acknowledging this Court's inherent discretionary power as evidenced by Rule 55 of the Industrial Relations Court Rules. She supported her position with a reference to the case of Kalunga Chansa v Evelyn Hone College10 and argued that if there was a limit to the Court's power to grant ex-parte orders as suggested by the Respondent, the Court's discretionary powers would be curtailed. This Court was urged to adhere to the guidance given by the Court of Appeal in the Kalunga Chansa10 case to ensure the ends of justice are met. 15. The Complainant reiterated the absence of court proceedings at the time of filing her application and the fact that there was no Respondent. By referencing the decision of the Supreme Court on the. purpose of ex-parte applications in the case of ZESCO Limited2 case, it was submitted that the Complainant's circumstances at the time warranted the filing of the application ex parte. The Complainant cited the urgency of the matter and the irreparable damage that she would have suffered if the application had not been made ex-parte. That moreover, the Respondent had R7 not identified any factors showing that the ex-parte order was not exercised judiciously. 16. The Complainant also argued that there was no evidence of any prejudice that had been occasioned to the Respondent and neither had it demonstrated that it will be impossible for the matter to be determined on the merits. With the aid of the case of Birkett v James11 , the Complainant identified three tests devised in that case which are useful in casu as follows: i. Was the default intentional and contumelious; ii. Has there been inordinate and inexcusable delay on the part of the Plaintiff or the lawyers and; iii. Will the delay give rise to substantial risk that it is not possible to have a fair trial of the issues or is likely to cause or to have caused serious prejudice to the Defendants as between them and the Plaintiffs or between each other or between them and third parties. (sic) 17. It was submitted that this Court was a court of substantial justice in accordance with section 85 (5) of the Industrial and Labour Relations Act, with an aim to determine matters on the merits. This Court was urged not to pay undue regard to technicalities as the Court is duty bound by the provisions of Article 118(1 )(e) of the Constitution of Zambia (Amendment) Act No. 2 of to do substantial justice between the parties. The Complainant pointed out that the effect of setting aside the ex parte is to essentially abort the main matter thus preventing its determination on the merits. This Court was beseeched to dismiss R8 the Respondent's application and to proceed to hear the matter on the merits. HEARING OF THE APPLICATION 18. Both Counsel for the Respondent and the Complainant placed reliance on the documents on record. Counsel for the Respondent augmented briefly by emphasizing the main points for consideration which, for the sake of brevity, I will not repeat save to state that I have duly taken note of them. 19. The Respondent also elected to reply to the Complainant's arguments orally by drawing the Court's attention to the case of Bank of Zambia v Al Shams Building Materials Company Limited12 where it was held that: " ... that orders of court must be obeyed at all times, whether perceived by the parties to be void, illegal or irregular until the order has been set aside or vacated ... " 20. The Respondent relied on this position to justify its having filed an Answer arguing that it did so in compliance with the Court order pending the filing of this application. DECISION AND ANALYSIS 21. I have considered the application, the affidavit evidence as well as the written and oral arguments. This application seeks to set aside the ex - parte Ruling that granted leave to the Complainant to file her Notice of Complaint out of time. That order was made pursuant to section 85 (3) of the Industrial and Labour Relations Act as R9 amended by Act No. 8 of 2008. The said provision provides in part that: 85 ... (3) 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; ... 22. It is not in dispute that this Court has power to extend the time within which ·a complaint can be filed. In the case of Goodfellow Hamainza v lndo Zambia Bank Limited13 the Supreme Court guided on the import of the said provision as follows: "In terms of section 85(3) of the Industrial and Labour Relations Act the IRC shall not consider a complaint or 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, within ninety days of the occurrence of the event which gave rise to the complaint or application. Of particular interest is paragraph (i) of the proviso which states that upon application by the complainant or applicant, the Court may extend the period in which the complaint or application may be presented before it. RlO .. .leave to file a complaint out •Of time is not granted as a matter of course as though the pursuer is merely pushing an open door. The granting of leave to file delayed complaints requires that discretion is exercised judiciously, there have to be sufficient reasons for the delay to seek redress incident complained of." in court after the 23. The first ground raised by the Respondent in this application alleges that the Respondent was denied an opportunity to be heard on the Complainant's application to file her Complaint out of time. The Complainant argued on the other hand that at the time that her application was being filed and heard, there were no court proceedings or a respondent to serve the court process on. In addressing this issue, I will cite extensively from Judge Ngoma's recent Ruling in the case of Buchisa Mwalongo v Cavendish University Zambian Limited14 where she stated that: "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 discussed in the Winni Zaloumis case and the Shamwana v Mwanawasa case be faulted. The question is whether the law as argued by the respondent is applicable to the facts of this case. 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, Rll 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 to consult or engage the other party before making an application for leave to file complaint out of time. 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. 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."(underline mine for emphasis) 24. The same matter went on appeal before the Court of Appeal in Cavendish University Zambian Limited v Buchisa Mwalongo15 and Judgment was delivered on 9th June, 2025. The Court of Appeal stated as follows: " ... we are of the considered view that the Court would not have arrived at a different conclusion even if the application had been heard inter-parte. This is because the cogent reasons for the delay as found by the Judge, R12 justify the granting of leave, regardless of the procedural issue of the application being ex-parte." 25. The Respondent has not cited any law that demands that applications to file complaints out of time under section 85 (3) of the Industrial and Labour Relations Act ought to be heard inter parte. The said provision merely provides for an "application" which has not defined anywhere in the Act. In the absence of any authorities saying otherwise, I stand guided by the Cavendish University Zambian Limited15 case and find no merit in the Respondent's argument. 26. Under the second ground, the Respondent alleges that the condition for the Complainant's dismissal was not subject to any administrative channels to warrant any inordinate delay in bringing its action before this Court. That moreover, the Complainant did not provide sufficient reasons for the delay arguing that at the time that she had engaged the Respondent for negotiations, 107 days had already elapsed. The Complainant insisted that she obtained leave to file her Complaint out of time upon presentation of good reasons. This Court was also urged not to dwell on technicalities but to do substantial justice. 27. Section 85 (5) of the Industrial and Labour Relations Act provides that: 85 ... (5) The Court shall not be bound by the rules of evidence in civil or criminal proceedings, but the main object of the Court shall be to do substantial justice between the parties before it. R13 28. The Constitutional Court stated in the case of Zambia National Commercial Bank Pie v Martin Musonda and 58 Others 16 that: ... all the relevant provisions bearing on the subject for interpretation should be considered together as a whole in order to give effect to the objective of the Constitution" 29. The above principle also applies to statutory provisions which entails that all relevant provisions having a bearing on the subject should be considered. Therefore, section 85 (3) should not be read in isolation but together with section 85(5) cited above. When the provisions are read together, the position at law is that the Industrial Relations Court is still mandated to do substantial justice even for applications to file complaints out of time. The Court of Appeal in upholding this mandate stated in the Cavendish University Zambian Limited15 case that: "In any event we find that the appellant's argument that the respondent ought to have made the application within the period 90 days is erroneous. This is because as guided by the Supreme Court of Zambia in the case of Jonathan Lwimba Mwila vs World Vision Zambia, applications for leave to file complaint out of time are not limited to any specified period because the Industrial Relations Division of the High Court is mandated to do substantial justice. Further that it has jurisdiction to hear such applications regardless of the delay and what was important was sufficiency of the reasons of the delay. R14 The lower Court was therefore on firm ground in finding that the Industrial Relations Act does not provide for a time limit within which an application for leave to file complaint out of time can be lodged ... " {underline mine for emphasis) 30. In casu, when the Complainant filed her application to file court process out of time, on 20th February, 2025, she advanced reasons for the delay. These reasons were through Ruling dated 7th March, 2025 considered to be sufficient as it was stated that: "Having read the affidavit filed by the Complainant it is clear that the delay was not deliberate." 31. Thus, in the absence of any law to the contrary, the position remains the same, that the reason advanced by the Complainant was sufficient and is still sufficient, regardless of her having engaged the Respondent some 107 days after the Complainant was dismissed. The late engagement by the Complainant with the Respondent cannot be a ground upon which this Court can set aside the Ruling in question as the Court of Appeal in the Cavendish University Zambian Limited15 case, guided that applications for leave to file complaint out of time are not limited to any specified period. Similarly, whether the conditions of service applicable to the Complainant did or did not provide for administrative channels after her dismissal, does not have an impact on her application to file complaints out of time. 32. Having arrived at this position, the remaining claim that the matter is statute barred equally falls off as it has no leg to stand RlS on. I therefore find that the entire application is devoid of merit and I dismiss it. I award costs to the Complainant. 33. Liberty to appeal is hereby granted. Delivered this 5 day of August, 2025 at Lusaka M. M. BANDA DISTRICT REGISTRAR