CITY OF Harare V Eversito Rungano & 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/200/16
HELD AT HARARE 10 MARCH 2016
CASE NO
JUDGMENT NO LC/H/200/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/200/16

HELD AT HARARE 10 MARCH 2016				CASE NO LC/H/APP/250/14

& 8 APRIL 2016

In the matter between:

CITY OF HARARE					Appellant

And

EVERSITO RUNGANO & 3 OTHERS			Respondents

Before The Honourable F C Maxwell, Judge

For Appellant			Mr C Kwaramba (Legal Practitioner)

For Respondents		Mr B Museba (Legal Practitioner)

MAXWELL, J:

This is an application for condonation of late application for leave to appeal to the Supreme Court combined with an application for leave to appeal to the Supreme Court.

On 25 October 2013 this Court granted an application for the granting of the appeal in terms of Rule 19 (3) (a) of S.I. 59/06 as respondent in that matter (now applicant) had not filed heads of argument as required by the same rules.  In terms of Rule 36 of S.I. 59/06, a party desiring to seek leave to appeal to the Supreme Court against any decision of this court must seek such leave within 30 days from the date of that decision.  The present application was filed on 17 June 2014.  Applicant’s founding affidavit states that it is not clear when the judgment was actually handed down in court.  Counsel for applicant should have advised client that the date reflected on the Registrar’s date stamp is the date when the judgment is handed down in open court, which is 25 October 2013.

For an application of condonation to succeed the following factors must be considered

the degree  of non-compliance with the rules;

the explanation thereof;

the prospects of success;

the importance of the case;

the convenience of the court; and

the avoidance of the unnecessary delay in the administration of justice.

See Bishi v Secretary for Education 1989 (2) ZLR 240, United Plant Hire (Pvt) Ltd v Hills

& Others 1976 (1) SA 717.

Explanation for non – compliance

Applicant alleges that it did not become aware of the judgment until April 2014 after receiving a letter from respondent’s lawyers.  Applicant alleges that the Registrar did not notify the parties of the handing down of the judgment.  Applicant further alleges that it became fully aware of the judgment on 6 May 2014.  Applicant filed an application for leave to appeal which was withdrawn on 13 June 2014 in order to make the present application.  Nothing on record contradicts applicant’s submission.  Respondents did not dispute that the first attempt to enforce the judgment was through the letter received by applicant on 23 April 2014.  I therefore find the explanation for the non-compliance plausible.

Prospects of success

The matter in issue is the interpretation of rule 19 (3) of S.I. 59/06.  Applicant had been legally represented at the commencement of the matter.  The legal practitioners did not file heads of argument within the stipulated time.  As a result applicant became barred and respondent applied for the matter to be dealt with as unopposed.  Applicant’s counsel did not renounce agency.  Applicant’s legal officer attended the hearing where the decision sought to be appealed against was made.  Counsel for applicant argues that the interpretation given by the court on Rule 19 (3) is faulty.  I am persuaded that an opportunity should be allowed for the issue to be argued on appeal.

I am therefore inclined to grant condonation and therefore leave to appeal to the Supreme Court.  The following order is therefore appropriate.

Condonation of late application for leave to appeal to the Supreme Court be and is hereby granted.

Leave to appeal to the Supreme Court be and is hereby granted.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

Muzangaza, Mandaza & Tomana, respondent’s legal practitioners