Cotton Company Zimbabwe Limited v Fortunate Molai

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT, NO LC/H/176/24
HARARE, 24 JANUARY, 2024
CASE NO LC/H/412/23
16 APRIL 2024
COTTON COMPANY ZIMBABWE LIMITED
APPLICANT
FORTUNATE MOLAI
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 24 JANUARY, 2024
16 APRIL 2024

COTTON COMPANY ZIMBABWE LIMITED

FORTUNATE MOLAI

Before the Honourable G. Musariri, Judge:

For Applicant - Mr T. Maanda, Attorney
For Respondent - Mr J. Mambara, Attorney

MUSARIRI, J:

Applicant applied to this Court for condonation of a belated Response. Respondent opposed the applicant.

The basis of the application is set out in applicant’s founding affidavit thus;

“5. On 24 March 2023 Respondent filed a notice of appeal against dismissal in this Honorable Court under case number LCH 223/23.

6. On 28 March 2023 Respondent served the Applicant with the notice of appeal. The appeal was served on Aldrian Manase, a Senior Human Resources for applicant.
 I have established that Aldrian Manase scanned the documents and sent me through an email the same day. Unfortunately, I was out of office on that day. When I came back after some days, I missed this email. The employee did not make a follow-up as he assumed, I had seen his email.

7. On the $17^{th}$ of May 2023 I was served with a physical copy of Respondent’s heads of argument in the appeal case. Oblivious to the fact that we had not filed a notice of response to the appeal I immediately wrote a letter to our Legal Practitioners of record instructing them to represent Applicant and sent them a copy of the Heads of argument.

8. On 22 May 2023 I received a call from our legal practitioners of record requesting a copy of the notice of response that had been filed in the matter. After making inquiries with my subordinates, **it dawned on me that Applicant had not filed its notice of response to the matter**.”

The present application was filed on $31^{st}$ May 2023. There is thus a delay of $1^{1/2}$ months in filing the necessary Response. Applicant stated that the critical document (appeal) not having come to the attention of the relevant official on time, the lapse is akin to misfiling of documents. Such lapse was canvassed in the case of

**Zimbank v Masendeke 1995 (2) ZLR 400(5)**

Per McNally JA at 402 F-G

“The mistake was, like many mistakes where documents go astray in the filing system of an organization, inexplicable. And one wonders how the court would benefit if a minute and detailed investigation were to reveal how the summons came to be filed without coming to the attention of the General Manager. The important explanation is that it was filed, and it did not come to his attention.


It is a **credible explanation** precisely because of the point I made earlier - the extreme improbability that Zimbabwe, through its General Manager, would intentionally abstain from defending this claim.”

**In casu** the document was filed but did not come to the attention of the relevant official because he was ‘out of office’. The official returned, then realised on 22 May 2023, the need to file a Response. He promptly instructed their attorneys to act which they did by filing this application on 31 May 2023. The Court is satisfied that a **credible explanation** has been provided for the default.

As regards ‘prospects of success’ applicant argued in its heads of argument thus;

“18. The applicant’s prospects of success in the appeal are high as the appeal has no prospects of succeeding. The merits favor the granting of the application. There is nothing to fault about the determination made by Applicant during the disciplinary hearing.”

Respondent counter-argued as follows;

“11...In short, in order to demonstrate its prospects of success, the applicant should have addressed the grounds of appeal instead of regurgitating the case it set out to prosecute and the prosecution of the case which is in issue concerning both the procedural irregularities and the accuracy of the findings on the substantive issues.”

The applicant is the respondent in the main matter. It is a prospective appellant who bears the onus to show reasonable prospects of success of his appeal. The prospective respondent bears no such onus. On that basis the Court is unpersuaded by respondent’s argument.


It is concluded that applicant has made out a good case for condonation. It is in the interests of justice that condonation be granted and the matter proceeds towards determination on its merits after full argument.

Wherefore it is ordered that,

1. The application for condonation be and is hereby granted;

2. Applicant shall file its notice of response in the matter LCH 223/23 within 10 (ten) days of this order; and

3. Each party shall bear is own costs.

G. MUSARIRI
J-U-D-G-E
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