Africa Gaming (Private) Limited v Phillip Francisco

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IN THE LABOUR COURT OF ZIMBABWE                                    JUDGMENT NO. LC/H/183/25

HELD AT HARARE 5 MAY 2025                                          CASE NO. LC/H/131/25
AND 6 MAY 2025


IN THE MATTER BETWEEN:



AFRICA GAMING (PRIVATE) LIMITED                                    APPLICANT

AND

PHILLIP FRANSCISCO                                                 RESPONDENT



Before Honourable Mr. Justice L.M. Murasi


For Applicant                        Mr. N.Z. Masuku

                                     With Mr. G.M. Nyangwa

For Respondent                       Mr. W. T. Mufuka



MURASI J.,

At the commencement of the proceedings, the Court enquired from Applicant’s legal
practitioners whether the matter was properly before the Court seeing that that it purported to be
a ‘Composite Application’ for condonation and review. The Court also enquired whether the
Rules provided for such a procedure.

In response, Mr. Masuku stated that he was relying on precedent when he filed the documents in
question. He further stated that he was relying on Read v Gardener 2019 (3) ZLR 575 (S) and
Murambiwa v SEEDCO LCH/361/23. He stated that he did not have anything further to say in
connection with whether the matter was properly before the Court.

In response, Mr. Mufuka stated that they had raised the issue in the Opposing Affidavit but later
relented when the two cases referred to by Applicant’s legal practitioner were included in the
heads of argument. He stated that he would abide by the Court’s decision.

Condonation is provided for in terms of Rule 22 of the Labour Court Rules, 2017. The Rule
provides:
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       “Application for condonation of late noting of an appeal or review

       22. (1) A party wishing to apply for condonation of the late noting of an appeal or review
       shall do so in form LC 1.

            (2) An application in terms of this rule shall be accompanied by a draft of the
       intended notice of appeal or review.”
Applicant’s legal practitioners base their argument on the decision by MUSARIRI J in the
Murambiwa Case which is quoted thus:

       “Applicant filed a composite application for condonation and review by this Court.
       Composite applications are permissible per the ruling by the Supreme Court in the matter
       Read v Gardener 2019 (3) ZLR 575 )S) at 581 F-G”

The relevant portion in the Supreme Court judgment is as follows:

       “Furthermore, it is also expedient, in order to expedite the finalization of the matter, that
       the application for rescission be adjudicated at the same time as the application for
       condonation. In my view, there is nothing in principle to preclude the composite
       adjudication of the two applications together as the considerations to be applied in the
       determination of both applications are virtually identical.”

It is common cause that in practice, applications for rescissions of judgment and condonation are
often ‘married’ as they relate to identical issues. In the Read Case, the telling point is stated thus
‘as the considerations to be applied in the determination of both applications are virtually
identical’. It is my view that the Supreme Court did not issue a blanket authorization for
‘Composite Applications’. There must be similarity of facts.

In Delta Beverages (Private) Limited v Spiwe Mapuranga SC 65/22, BHUNU JA referred to
a decision by GUVAVA JA at page 5 of the cyclostyled judgment thus:

       “In my view therefore, when the court makes an order such as the one in question, it
       simply means that the ‘draft’ notice of appeal which must be filed together with the
       chamber application for condonation and extension of time to note an appeal has been
       accepted by the court.

       In my view it follows that the applicant must thereafter file the notice of appeal within the
       prescribed period in terms of the rules.”

The Learned Judges, in the above cited cases, were referring to applications for condonation of the
late filing of appeals. The Supreme Court Rules also require the filing of a draft Notice of Appeal.

I now turn to the provisions of Rule 22. It is the one that provides for applications for condonation.
Sub-rule (2) provides that such an application ‘shall’ be accompanied by a draft Notice of Appeal or
Review. It is my view that these provisions are clearly unambiguous. It is trite that in the
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interpretation of statutes, the criterion is not the quality of the command but the intention of the
legislature which can only be derived from the words of the enactment, its general plan and
objects. In Madoda v Tanganda Tea Company Ltd 1999 (1) ZLR 374 (S), SANDURA JA
quoted with approval the wise words of McNALLY JA in Chegutu Municipality v Manyara
1996 (1) ZLR 262 (S) thus:

       “There is no magic about interpretation. Words must be taken in their context. The
       grammatical and ordinary sense of the words is to be adhered to…”

In Rule 22, there is the use of the word ‘shall’. In Lwazi Sibanda and Anor v Francisca Ncube
and Others SC 158/20 PATEL JA (as he then was) had this to say:

       “It is trite that the use of the word ‘shall’ in the context of a statutory duty ordinarily
       connotes the imperative nature of that duty… Where the duty in question is held to be
       peremptory, the failure to comply with it will operate to invalidate or nullify anything
       done the governing statutory provision.”

A litigant is therefore enjoined to obey the peremptory orders of the statute.

I did not understand the Read v Gardener judgment to give a blanket authorization to litigants
to file ‘Composite Applications’. In that particular case, the issues for consideration were said to
identical. This is not the case in this matter. Applicant seeks to be condoned for not complying
with the Rules. That on its own is matter which has to be determined by a Court. The objective
of attaching a draft of the intended appeal or review is to assist the Court in assessing the
prospects of success in the matter. A litigant cannot therefore be seen to file an application for
condonation and in the same breath ask the Court to determine the main matter. The litigant
would have assumed that condonation is there for the taking. This is not how civil practice
operates. In any event, the dictates of statute have to be adhered to and followed.

It is for the above reasons that I am of the considered view that the “Composite Application” is
improperly before the Court and ought to be struck off the roll.
The following Order is appropriate.

   1. The Composite Application for condonation of the late filing of an application for
      Review and the Application for review is hereby struck off the roll as it is improperly
      before the Court.
   2. There is no order as to costs.




MawereSibanda Commercial Lawyers-             Applicant’s legal practitioners

Thompsons-                                    Respondent’s legal practitioners.