Chatprill Enterprises v Admire Nhamo and Passmore Mutandi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/271/2014
HARARE, 8 OCTOBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/271/2014

HARARE, 8 OCTOBER 2013 &		   	     CASE NO LC/CON/H/60/2013

9 MAY 2014

In the matter between:

CHATPRILL ENTERPRISES					    APPLICANT

Versus

ADMIRE NHAMO							    1ST RESPONDENT

And

PASSMORE MUTANDI						   L2ND RESPONDENT

Before The Honourable F C Maxwell	:	Judge

(IN CHAMBERS)

MAXWELL J:

This is an unopposed application for condonation for late filing of appeal which came before me in chambers. The founding affidavit by Oscar Maromo, the General Manager of the applicant, gives the background of the application.

The respondents were dismissed from employment by the applicant on the basis of unsatisfactory performance as they had failed to account for missing stock. They appealed against the decision of the management to the National Employment Council for Commercial Sectors and their appeal was dismissed on 31 January 2013. Aggrieved they appealed to the Appeals Office within the National Employment Council for Commercial Sectors and their appeal was upheld on 24 April 2013.

The applicant was supposed to appeal to this court within twenty-one days of the handing down of the ruling but failed to do so. This application was only filed on 31 May 2013.

For such an application to succeed the applicant must reasonably explain his delay and show that there are good prospects of success on appeal. As per ZIYAMBI JA in Paul Gary Friendship v Cargo Carriers Limited & Anor SC-1-13:

“Condonation is an indulgence which may be granted at the discretion of the court. It is not a right obtainable on demand. The applicant must satisfy the court/judge that there are compelling circumstances which would justify a finding in his favour. To that end, it is imperative that an applicant for condonation be candid and honest with the court.

Certain criteria have been laid down for consideration by a court/judge in order to assist in the exercise of its discretion. Among these are, the extent of the delay and the reasonableness of the explanation therefor, the prospects of success on appeal, the interest of the court in the finality of judgments and the prejudice to the party who is unable to execute his judgment. The list is not exhaustive.”

See also Bishop Elson Madoda Jakazi & Anor v The Anglican Church of the Province of Central Africa & Anor SC-10-2013.

Has the applicant given a reasonable explanation for the delay?

The answer is in the negative. The reason for the delay is given in paragraph 7 of the founding affidavit to the effect that:

“… it was a self-actor and was not well versed with the rules and procedures of this honourable court.”

The court does not accept this explanation as reasonable. The decision sought to be appealed against has the following as the last statement before the signature of the Chief Designated Agent:

“Any party who is aggrieved by this decision and wishes to appeal, must do so, to the Registrar by registering the appeal at the Labour Court which is found at 1st Floor Robinson House, Corner Kwame Nkrumah/Angwa Street, Harare, within twenty one (21) days.”

The language is simple and the directions so clear that even a layman would know where to go if wishing to appeal. It is therefore unacceptable that a manager wants the court to believe that the simple directions given by the Chief Designated Agent required one to be well versed with the rules and procedures of this court. Moreover in a letter dated 2 May 2013 from the applicant, authored by the same manager, to the respondents’ lawyers (page 15 of record) the following appears:

“… in doing so you will be breaching what is within the contents of the letter which was from the negotiating committee because the company was given 21 days to respond.” (own emphasis)

Clearly the manager was aware of the need to act within 21 days.

As far as the prospects of success are concerned, the founding affidavit simply states in paragraph 8:

“The applicant has prospects of success if condonation to file its appeal is granted and allowed a chance to prosecute its appeal.”

There is no draft notice of appeal with grounds of appeal to enable the court to assess the prospects of success.

The application indicates that it was prepared by Tavenhave and Machingauta Legal Practitioners. They are expected to be familiar with the requirements for an application for condonation to succeed. Moreover as stated by ZIYAMBI JA in Tanganda Tea Company Limited v Paul Madoda SC-97-02:

“It cannot be over-stressed that an applicant for condonation must place all the necessary details before the court to enable it to correctly assess the merits of the application.’

The applicant has failed to discharge the onus of showing that there are prospects of success on appeal.

Accordingly the application for condonation for late noting of appeal fails and is dismissed. There will be no order as to costs.

Tavenhave & Machingauta, appellant’s legal practitioners

Chambati & Mataka Attorneys, respondents’ legal practitioners