Archibald Tsoro v Innsor Africa

IN THE LABOUR COURT OF ZIMBABWE                    JUDGMENT NO. LC/H/186/2013
HELD AT HARARE ON 20 MAY, 2013                 CASE NO. LC/ CON/H/161/2011
In the matter between



ARCHIBOLD TSORO                                –             Applicant
And

INNSCOR AFRICA                                 –             Respondent




Before The Honourable L. Matanda-Moyo, President
For Applicant      - In person
For Respondent     - S. Njerere (Legal Practitioner)


MATANDA-MOYO, L.

      This is an application for condonation for late noting of appeal. The brief

facts are that the Applicant was employed by the Respondent at its Lytton Road

factory. On 12 December 2009 whilst on duty, the Applicant engaged in a fight

with another employee, who was his supervisor by the name Dennis Gamariel.

The two were both attended at Harare Hospital for injuries received during the

fight. The medical affidavits were produce during the hearing. As a result the

Applicant was charged and found guilty with physical assault and fighting in

contravention of section 9.2.2.xi of the Respondent’s Code of Conduct.

Applicant was dismissed from employment.             Gamariel resigned before the

disciplinary proceedings commenced.         Applicant appealed to the Appeals

Committee which upheld his dismissal. Such decision was communicated to the

Applicant on 20 January 2010. In March 2010 the Applicant lodged an appeal

with the Ministry of labour. Applicant was advised by the Labour Officer to note
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his appeal with the Labour Court sometime in July 2010. The Applicant filed this

application on 13 September 2010 more than 8months late.



      Respondent referred me to the case of Hermansberg Mission and

Another vs Sugar Industry Central Board and Another 1981 (4) S.A. 278(N)

which listed some of the factors to be considered by the court before an

application for condonation would succeed. These are;



   a) The degree of non-compliance with the rules,

   b) The explanation thereof

   c) The prospects of success on the merits

   d) The importance of the case

   e) The convenience of the court and

   f) The avoidance of unnecessary delay in the administration of justice.



   The Applicant submitted that he was waiting for a clearance from the police

before he could lodge his appeal. He wanted to be cleared of the criminal case

first before he could appeal. When he lodged his appeal with the Ministry of

Labour in March 2010 he believed that he was to file his appeal with the

Ministry. It was only in June that he was advised by a Labour Officer that he was

to file his appeal with this court. Applicant did not do so immediately claiming

that he relocated his family to the rural areas that time as he could not afford

their up keep in town. He then lodged this application in September. The

reasonableness of the explanation proffered by the Applicant must not be

looked at in isolation. The court must arrive at a decision after considering all




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the circumstances of the case. In Bishi vs Secretary for Education 1989(2) ZLR

240(HC) it was held that;


       “--- the facts are not individually decisive but are interrelated and must be weighed one
       against the other, thus a slight delay and good explanation might help to compensate for
       prospects of success which are not strong”


   Let me proceed to look at Applicant’s prospect of appeal in the main case.

The Applicant’s major ground of appeal is that he never fought with a fellow

worker. He argued that he has since been cleared by the criminal court. As

such there is no evidence of fighting at the workplace. Respondent on the other

hands submitted that evidence was shown on a balance of probabilities that

Applicant fought with Dennis Gamariel at the workplace. Respondent submitted

that Outpatient Record and Review Card for Denis Gamariel were produced

before the hearing, so were the request for Medical Report and the Medical

Affidavit.    Such reports showed that Dennis Gamariel sustained injuries

consistent with fighting. The police reports were also produced which showed

that Dennis Gamariel reported a case of assault against the Applicant.



   The guard’s report was also produced during the hearing. It was the guard’s

evidence that he failed to separate the two. Both the Applicant and Gamariel

did not heed the guard’s advice.



   The Applicant is relying on his acquittal by the criminal courts. It is common

cause that the burdens of proof required before a criminal court and civil

proceedings are different. The burden of proof required in criminal cases is

much higher than that required in civil proceedings. The burden of proof before


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a criminal court is beyond a reasonable doubt whilst in civil proceedings the

proof is a balance of probabilities. It is possible for one to be acquitted before a

criminal court whilst being convicted before civil proceedings.         Applicant’s

prospects of success on appeal are not good. From a reading of the record of

proceedings there is proof on a balance of probabilities that indeed Applicant

fought with a fellow employee at work.



      The question of penalty is the prerogative of the employer and involves

the exercise of discretion. As long as the employer did not abuse the exercise of

such discretion, an appeal court is unlikely to interfere with such exercise of

discretion. I am satisfied that the appeal court would not interfere with the

penalty of dismissal.



Accordingly the application for condonation of late noting of appeal fails and is

dismissed with no order as to costs.




Honey and Blanckenberg– Respondent’s Legal Practitioners




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