British American Tobacco Zimbabwe Holdings Limited v Jonathan Chibaya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/150/2021
HARARE, 15 JULY 2021 &
CASE NO LC/H/APP/345/2020
24 SEPTEMBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/150/2021

HARARE,  15 JULY  2021 &			  CASE NO LC/H/APP/345/2020                                 24 SEPTEMBER 2021

In the matter between:-

BRITISH AMERICAN TOBACCO ZIMBABWE	APPLICANT

HOLDINGS LIMITED

AND

JONATHAN CHIBAYA					RESPONDENT

Before the Honourable Manyangadze  J

For the Applicant			Mr A. Mufari  (Legal Practitioner)

For the Respondent			Mr K. Gama (Legal Practitioner)

MANYANGADZE, J:

After hearing argument from both parties, I delivered judgment ex tempore, dismissing the application.  This is the full judgement.

Before the court is an application for condonation of late noting of an appeal and late filing of an application for review.

The respondent has raised two points in limine.  These are that;

Answering Affidavits, in both the appeal and review application for condonation, are improperly before the court as there is no provision in the Rules of Court for Answering Affidavits.

The application is fatally defective as the applicant omitted to request for an extension of time within which to file its appeal and review.

Initially, the court was inclined, as suggested by counsel for the respondent, to proceed to hear the merits of the application and deal with all issues raised in the final judgment.

Upon reflection, the court is of the considered view that the 2nd point in limine is to be considered first.  It has taken this position in view of the fact that the point raises the fundamental procedural aspect of whether or not, in the first place, the application is properly before the court. If it was the question of the Answering Affidavits only, the court would have proceeded to the merits, as their striking off, should that be the court’s decision, would not be dispositive of the entire application be it in respect of review or the appeal.  The other point, if upheld, has the effect of striving the application off the court’s roll, for being fatally defective.

So the pertinent question is, is the omission to request extension of time within which to note the intended appeal and file the intended review, a fatal omission?

The respondent referred the court to the case of  Kadungure  v Kadungure  SC 19/07, where ZIYAMBI JA pointed out that such an application should be “correctly termed an application for an extension of time within which to note a cross-appeal.” That of course, equally applies to an appeal.

The learned judge of appeal was emphatic on this point, judging by her clear and unambiguous remarks  in the judgment, which were as follows:

“This Court has reiterated time and time again that it cannot condone the late noting of an appeal as the appeal so noted is a nullity.  It does not exist.  How can it be condoned? What an applicant must apply for is an extension of the time within which to note an appeal (or cross-appeal as the case may be) and for condonation of his failure note an appeal (or cross appeal) in the time prescribed.”

This, coupled with the stance taken by BHUNU JA in Ahmed  v Docking Station Safaris (Pvt) Ltd, SC 70/18, means that an incorrect application has been brought before the court.  The effect of that is that there is nothing placed before the court. The judge remarked;

“…….the nature of the application that is before the court is determined by the contents of the founding affidavit and not the headings on the cover of the application…in casu, it is averred twice in the applicant’s founding affidavit that the application is for condonation for non-compliance with the rules and reinstatement of appeal….This application is thus one for condonation and reinstatement of appeal as averred in the founding affidavit.

In view of the above, it is clear that the applicant has approached this court with a wrong application….The net effect of bringing a wrong application before the court is that there will be virtually nothing placed before it and, to that end, this application cannot stand.”:

This court is bound by these authorities. The application before it is affected by the defect pointed out in the Kadungure  case,  supra.

It is significant to note that the applicant has not argued that the request for an extension of time within which to file the appeal and review is not an essential requirement.  Instead, it was argued, on behalf of the applicant, that its papers  do in fact contain that request.  This contention is a concession that a valid application must incorporate that essential request.

A perusal of the applicant’s Founding Affidavits and Heads of Argument shows that no such request was incorporated in its papers. What is before the court  therefore is simply an  application for condonation of the late noting of an appeal and an application for late filing of an application for review.. There is no application for extension of time within which to note the appeal and file the review.  As clearly stated in the Kadungure case, supra, that is a fatal omission.

I agree with the sentiments expressed by counsel for the respondent during oral submissions, to the effect that counsel for the applicant, after this point was raised in the notice of opposition, should perhaps have considered withdrawing the application, with a view to filing it afresh, properly drafted. The court is merely pointing out that as a possibility that was available.  It is not for the court to prescribe what course of action a party to a case should take.

In the circumstances, the proper course of action is to strike off the application for condonation of late noting of appeal and late filing of review. This renders it unnecessary to deal with the question of the propriety or otherwise of the Answering Affidavits, as these form part of the applications that has been struck off the roll.

It is accordingly ordered that;

The Respondent’s 2nd point in limine be and is hereby upheld.

The application for condonation of late noting of an appeal and late filing of an application for review, be and is hereby struck off the roll.

The Applicant bears the Respondent’s costs.

Gama and Partners, Respondent’s Legal Practitioners

Mawire J.T. & Associates, Applicant’s Legal Practitioners