Cliff Nhokwara v Tennis Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 09 SEPTEMBER, 2024 & 17
JUDGMENT NO. LC/H/18/25 CASE NO. LC/H/617/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 09 SEPTEMBER, 2024 & 17

JANUARY 2025

JUDGMENT NO. LC/H/18/25 CASE NO. LC/H/617/24

CLIFF NHOKWARA	APPLICANT

Versus

TENNIS ZIMBABWE	RESPONDENT

Before the Honourable Kudya J;

For the Applicant	- I. Nderere and F. Manyuchi, Legal Practitioners For the Respondent	- S. Musapatika, Legal Practitioner

KUDYA J:

This is an application for condonation for the late noting of an appeal. The background to the matter is that appellant lost his job with Tennis Zimbabwe following disciplinary proceedings. He is unhappy with his job loss so he intends to appeal to the Labour Court about the job loss. His first attempt to appeal in 2022 was followed by incidences of his appeal being deemed abandoned for non-compliance with the Labour Court Rules. Twenty two months later he is seeking for the late noting of his appeal. He attributes the delay to sluggishness on his lawyers’ part. He claims that he has good prospects of appeal so he seeks to be condoned for the delay. The respondent is opposed to the grant of condonation relief.

It states that the delay is inordinate, that the sluggish lawyer approach is not substantiated by an affidavit from the lawyer concerned and that the intended appeal has no merits. The respondent prays that the condonation application be dismissed with costs on the higher scale since this application is in its view an abuse of court process. At the onset of the application parties argued over the notice of opposition in the matter. The applicant was adamant that there was no opposition as it did not have the attendant resolution to demonstrate that the deponent to the opposing affidavit was not on a frolic of his own. The appellant impugned the resolution tendered by the respondent and argued that it had to be under the hand of the executive committee. It is settled that when authority is queried it has to be satisfied by the production of a resolution. See Dube v PSMAS SC 79-19.

The mischief behind resolutions is to guard against parties litigating on a frolic of their own without the mandate of the legal persona the purport to represent. In the case at hand what was only critical was to ensure that indeed litigaton was sanctioned by Tennis Zimbabwe. The niceties about their structures is neither here nor there. The argument about the resolution being without foundation should therefore fall away. The point in limine is accordingly dismissed. On the merits plane the test for condonation is settled. See Jansen v Acavalos 1993(1) ZLR216(S)

Extent and Excuse

In the case at hand delay is about 22 months. The excuse is that the lawyer who was handling the matter bungled it at all times resulting in the matter being deemed abandoned on more than a single occasion. As observed by the respondent there is no affidavit from the said lawyer explaining the burgling complaining about. To that extent the excuse remains hanging without foundation. It is settled that where a litigant wants to rely on his lawyer’s folly to found a condonation excuse such lawyer should put in an affidavit to explain such. See Mapfumo vs Divvy land Pvt Ltd SC39-24. Such has not been done in this case to the extent that the excuse remains without foundation. The application thus fails the 1st rung.

Merits of the matter

In the case at hand the appellant states that he was relieved of his duties in circumstances where he is of the view that such should not have happened. The brief history set out in the papers filed

of record however suggests that the appeal is volatile. It does not seem to hold sufficient strength to support the condonation sought by appellant.

As regards the convenience of the court and the quest for finality to litigation. See Muwani vs Mugumwa HCH 116-23 It is clear that the court cannot be saddled with repeated cases of the same application being abandoned and rekindled. The trend on the matter seems to give effect to what is frowned upon in the case of Ndebele v Ncube 1992(1) ZLR288(SC) that the law only helps the vigilant and not the sluggard. In the case at hand appellant can only blame himself for the sluggish prosecution of his appeal.

Punitive costs

It is settled that such are only reserved for exceptional cases. See Mahembe v Matambo HC B 322-

02. Facts of the case at hand do not demonstrate anything extraordinary that warrants the court to penalize the applicant with costs on the higher scale. It is the court’s view that the interests of justice dictate that costs be awarded on the ordinary scale.

In the ultimate the application for condonation for late noting of appeal being without good foundation it be is and hereby dismissed with costs on the ordinary scale.

Scanlen and Holderness- Applicant legal practitioner

Danziger and Partners- Respondent legal practitioner