Africa Gaming (Private) Limited v Phillip Fransiscoo

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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:
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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 FRANSISCOO

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:


“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 JS) 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 theinterpretation 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 |
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