Collins Mundopa v Mbada Diamonds

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/233/14
HELD AT HARARE 25TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/233/14

HELD AT HARARE 25TH MARCH 2014  		    CASE NO LC/CON/MC/02/14

& 11TH APRIL 2014

In the matter between:-

COLLINS MUNDOPA				Applicant

And

MBADA DIAMONDS				Respondent

Before The Honourable E Makamure, Judge

For Applicant		Mr I Gonese (Legal Practitioner)

For Respondent		Mr A Marara (Legal Practitioner)

MAKAMURE, J:

This is an application for condonation of late noting of an appeal.  The reasons proffered  for approaching the court later than is set out in the Rules is that the respondent did not furnish timeously the applicant with the record of proceedings.  It was submitted on behalf of the applicant thatonce the respondent availed the said record, the applicant commenced to note an appeal with this Court.  By then he was already out of time, hence this application.

It is not disputed that while the applicant did not have the record of proceeding, he had the decision.  Rule 15 of the Rules of this Court lays down in peremptory terms that once a party has a decision (and not the record of proceedings) they can file an appeal against that decision.  It may be necessary for that party to consider the full record of proceedings in order to be able to formulate their grounds of appeal. However what is important in terms of the Rules is the decision.  It has been noted that once the applicant received the record of proceedings they proceeded to note the appeal and file the present application.  However, that very record was not attached to the present application.

It is trite that in an application of this nature the following must be considered:

the nature and extent of delay

the  reasons for the delay

the prospects of success should the matter be heard on the merits

(See Chubb Union Zimbabwe (Pvt) Ltd v Chubb Union Workers S-I- 2001;

Maxwell Mwanyisa v The Minister of Finance & The Controller Department of Printing & Stationery & PSC H 65-2001)

From what has been presented one can say a delay of two months where a party was not represented is not in ordinate.  However when a party, as in the present case, was legally represented that delay is not acceptable.   As an officer of the Court a legal practitioner is expected to comply with Rules of this Court.  It is noted that Rules generally are not “cast in stone” so to speak.  There are always exceptions.  This is why we have applications like the present one where one has for a good reason, just missed the mark.  These are exceptions.  The Labour Court Rules are framed in a manner to accord parties a lee way in an effort to afford them, as much as possible, a chance to be heard.

However parties should not approach this Court on the basis of those rules which are meant to provide for exceptional circumstances.  Thus it is not the Court’s intention or wish to water down the firmness of the rules by following those rules which provide for exceptions.  There has to be good cause for the legal practitioner to fail to observe the rules of this Court in order for the Court to exercise its discretion in granting the indulgence sought.

It was submitted on behalf of the applicant that the prospects of success on appeal are reasonable.  The applicant has been conservative with information.  In his affidavit he simply states that the notice of appeal shows that he has good prospects of success an appeal.  Unfortunately the notice of appeal simply states the grounds of appeal – which is what is should do.  Had the recordof proceedings or even the decision appealed against been attached, one would have been in a position to assess the degree of the appellant’s grief vis-sa-vis the decision in question.

It is not sufficient to simply aver that one has got good prospects.   Such prospects must be demonstrated.  This will enable the Court to make the appropriate decision.As correctly pointed out by the respondent in this Heads of Argument, an application for condonation is not a mere formality simply because one has a right to do so.  The application must be genuine and substantiated.

In casu the applicant has not discharged the onus required of him on a balance of probabilities.  In the circumstances the application fails.  On the question of costs, the applicant prays for costs on the ordinary scale.  The respondent  on the other hand initially prayed for costs debonis propriis with argument for that prayer.  However during oral submissions it was submitted on behalf of the respondent that the Court exercises its discretion.  Costs usually follow the cause.  While the case was a strong contender for costs on a higher scale,it is my considered view that costs granted on the ordinary scale will meet the justice of the case.

Accordingly it is ordered that the application for condonation of late noting of appeal be and is hereby dismissed with costs.

Gonese & Ndlovu, applicant’s legal practitioners

Mutamagnira & Associates, respondent’s legal practitioners