Benedict Mugura-Gumeni v Cotton Company of Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/126/2020
HARARE, 15 JANUARY 2020
CASE NO.: [NOT PROVIDED]
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/126/2020

HARARE, 15 JANUARY 2020		               CASE NO. LC/H/APP/405/19

AND 5 JUNE 2020

In the matter between:-

BENEDICT MUGURA-GUMENI					Applicant

And

COTTON COMPANY OF ZIMBABWE LIMITED		Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr J Mutonono (Legal Practitioner)

For Respondent		Ms R Makumbe (Legal Practitioner

CHIDZIVA, J:

This is an application for condonation of late noting of an appeal against the decision of the Respondent to dismiss the applicant from employment.

The brief background of the matter is that the applicant was dismissed from employment on 17th April 2019. On the	6th of May 2019 he then filed an appeal to this court under case number LC/H/99/19. On the 24th of May2019 the Respondent then filed its response and raised the following points in limine.

The applicant had submitted the word “led” when he cited the Respondent in the appeal and therefore there was no appeal before the court.

The applicant also used form LC 3 in the appeal instead of LC 4 as provided for in SI 150/17.

Applicant then withdrew the matter on the 5th June 2019 and is now applying for condonation of late filing of the appeal. The applicant has submitted that he has been genuine in his desire to note the appeal and he also has prospects of success on appeal.

The Respondent in response stated that the applicant should have explained,

the non-compliance with rules i.e. failure to file appeal within 21days.

the delay to apply for condonation.

Prospects of success.

The case of Kodzwa v Secretary for Health and Anor 1999 (1) ZLR 313 clearly stated the requirement for applications for condonation as follows,

“The factors which the court should consider in determining an application for condonation are clearly set out in Herbstein and Van Winsen’s The Civil Practice of the Supreme Court of South Africa led by Van Winsen Cilliers and looks at pp 897-898 as follows,

Condonation for the non-observance of the rules is by no means a mere formality.  It is for the Applicant to satisfy the court that there is sufficient cause to excuse him from compliance … The court’s power to grant relief should not be exercised arbitrarily and upon the mere asking but with proper judicial discretion and upon sufficiency and satisfactory grounds being shown, the basic principle is that the court has a discretion to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice. The factors usually weighed by the court in considering applications for condonation …. include the degree of non-compliance, the explanation for it, importance of the case the prospects of success, the Respondent’s interest in the finality of his judgment the inconvenience of the court and the avoidance of unnecessarily delay in the administration of justice.”

Makon J (as she then was) in the case of Turner and Sons (Pvt) Ltd vs Master of the High Court and2 Others HH 498/15 stated that,

“The Court is enjoined to exercise its discretion in the interests of justice and when the reasons for non-compliance with the rules have been explained to the satisfaction of the court, grant condonation.”

It is my view that the applicant has given a satisfactory explanation for the delay in filing the appeal against the decision of the employer. The failure by the lawyer to write the correct citation of the Respondent cannot be blamed on her. When the applicant was notified of the defect she filed this application within a month in order to rectify the defect. A delay of about 60 days cannot be said to be inordinate.

Furthermore it was not like the applicant was just seated without taking any action. She clearly exhibited her intention to seek justice in this matter.

The applicant also clearly stated why she was of the view that she had prospects of success on appeal.

In the case of Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 Sandura JA stated that,

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive Thus in the case of a flagrant breach of the rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused whatever the merits of the appeal may be.”

It is my view that applicant has acquitted herself well on the requirements for these applications.

In the circumstances I order as follows,

The applicant be and is hereby condoned in his late noting of appeal.

The Applicant be granted leave to note his appeal within five days of being granted this order.

There shall be no order as to costs.

Chadyiwa & Associates, applicant’s legal practitioners

Messrs Dube, Manikai & Hwacha, respondent’s legal practitioners