Brian Murewa v National Social Security Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/324/2024
HARARE, 22 JULY 2024
05 AUGUST 2024
CASE NO LC/H/528/24
BRIAN MUREWA
APPLICANT
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BRIAN MUREWA

APPLICANT

NATIONAL SOCIAL SECURITY AUTHORITY

RESPONDENT

Before the Honourable G. Musariiri Judge:

For Applicant - Mr A. Magogo, Advocate
For Respondent - Mr C.J. Mahara Attorney

MUSARIRI, J:

Applicant applied to this Court for condonation of late noting of appeal. The application was made in terms of Rule 22 of the Labour Court Rules, 2017. Respondent opposed the application. Previously applicant noted an appeal under reference LCH 559/23. The appeal was struck off the roll by this Court (Justice Chivizhe) on 23rd April 2024 by reason of a fatally defective Notice of Appeal. Applicant then filed the present application on 23 May 2024.

The material part/s of applicant’s founding affidavit deposed that,

“14. The determination of the Disciplinary Authority was rendered on 5 June 2023. This honourable court has held that I ought to have reacted to this determination by filing an appeal within 21 days thereof, to wit, on or before 4 July 2023.
15. A period of nine (9) months has since lapsed since that day.
18. Further, when the issue of the appeal being out of time was taken in the notice of opposition on 2 August 2023, I received advise from counsel that the date of reckoning was actually the date of confirmation by Respondent of the recommendation by Justice Chinhengo.
19. Counsel’s perception of the matter was fortified by a decision of this court in a related matter of my review application under case number LCH 101/2024. The decision was pronounced by Musariiri J under judgement number LCH 560/23
 22. Regarding the delay from the striking off the roll of my appeal to the filing of the present application, I must say I was taken aback by the decision of Chivizhe J especially in light of the earlier decision by Musariri J. I therefore requested my attorneys to seek Counsel’s opinion on the decision by Chivizhe J and to advise on way forward. I only received counsel’s opinion on May 2024 as he was on vacation holiday. Although counsel appeared to suggest that I had the option to challenge the decision by Chivizhe J, I have considered the time and cost it may take me to get the decision considered in the apex court before having my matter related to on merits, I elected to comply with the judgment. I then instructed my attorneys to prepare this application for me.”

Respondent countered through its opposing affidavit thus,

“Ad Para 14-16
10. Denied. A period of ten (10) months has since lapsed and such period is inordinate. The Applicant has not demonstrated why the period is inordinate.
‘Ad Para 2023
13 Denied/ These averments are baseless.
There is nothing in form of proof or evidence that the Applicant received a legal opinion from his legal practitioners, I am thus advised … that an application stands or falls on its founding affidavit. In the absence of any proof or evidence relating to the averments made in this paragraph this Honourable Court is implored to disregard the same. Accordingly, it is my humble averment that the Applicant’s explanation is unreasonable.”

This Court is persuaded by applicant’s argument. He was faced with 2 conflicting rulings by the Judges of this Court. One found that his earlier appeal was filed on time. The other then found that the same appeal was filed out of time. This obviously required reconsideration of his position with the assistance of counsel. Though the delay reckoned from the disciplinary hearing is long, the explanation for delay is reasonable as applicant reasonably believed his abortive appeal was properly before the Court. The absence of documentary proof of counsel’s opinion is neither here nor there. A re-calibration of applicant’s position was clearly necessary. In any event counsel’s opinion is confidential material covered by attorney-client privilege. It cannot or should not be lightly divulged.

Apropos his prospects of success in the intended appeal to this Court, applicant argued in his heads that

“11. In the first ground of appeal the complaint is one of evidentiary inconsonance. Applicant was found to have misconducted himself in the disposal of the Quinington properly without a Board resolution. There was however evidence on record telling a different story. On 10 June 2022, authority to dispose of the property was granted. The Respondent’s primary witness confirmed this fact. That the property was then disposed of later did not alter the existing authority, and neither did the so-called instruction by the General Manager of 3 October 2022. 12.A careful reading of Daniel Ngwira’s opposing affidavit betrays the position adopted by the disciplinary authority a quo. In his paragraph 15, Daniel Ngwira proffers a bare denial of the allegations made in the first ground of appeal….

14. Once it is accepted that there is merit in the first ground of appeal, then it is submitted that there are prospects of success in the entire application for condonation.”

Respondent counter-argued through its heads that

“46. The Respondent submits that the disciplinary authority’s finding and conclusion was not unreasonable or irrational. Before the disciplinary authority a quo, the Respondent led evidence to the effect that the Appellant was well aware of NSSA policies and procedure as regards the disposal of properties. The Respondent led evidence from its Acting General Manager (first witness) testified that the Applicant had approached him seeking for his approval to complete the transaction in question. Moreover, the Acting General Manager indicated that he had told the Applicant not to proceed with the transaction in question as it required approval from the Board of Directors (hereafter referred to as “the Board”) as per NSSA policies and procedures.

47. In light of the above, the first witness further confirmed that the Applicant having been advised of the need of Board approval, he deliberately proceeded to instruct Platinum Investment Managers to dispose the said property without his knowledge and the Board being unaware. The Applicant had directed the instructions to dispose of the Borrowdale property via email dated 10 June 2022 to one Prospect Mapika of Platinum Investment Manager. This email did not copy the Executive Assistant and The General Manager as in the previous correspondences.”

Evidently there is a dispute as to whether Respondent’s Board approved of the disposal of the Borrowdale/Quinington property. Applicant references “evidence on record” proving his case. On the other respondent denied the existence of the Board approval through one D. Ngwira. If the approval existed, then applicant has good prospects of success on this issue. However, it is not for this Court at the stage (condonation) to determine whether or not the approval was proved. That is a matter for the Court sitting over the intended appeal, if condonation is granted. This Court thus concludes that applicant has set out an arguable case on the merits.

Condonation is a discretionary remedy whose grant depends on factors as those laid down in

Muroiwa v Delta 2002(2) ZLR 30(S)

Per Chidyausiku CJ at P 33 F- G

“In dismissing the application for condonation, the learned judge in this case took into account:

(1) the duration of delay;

(2) The explanation for the delay, and
 (3) The applicant’s prospects on the merits. The above factors were relevant to the issue the learned judge had to determine. Accordingly, there was no misdirection.”

Applying the Muroiwa case to the facts of the present matter the Court notes

1. The delay was long;
2. The explanation for delay is reasonable, and
3. Applicant has prospects on the merits.

Wherefore it is ordered that

1. The application for condonation be and is hereby granted;

2. Applicant may file his appeal to this Court within fifteen (15) days of this order; and

3. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E
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