Daniel Mashinge v Post Office Savings Bank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/829/2014
HARARE, 10 NOVEMBER 2014
CASE NO.
JUDGMENT NO. LC/H/829/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/829/2014

HARARE, 10 NOVEMBER 2014	                         CASE NO. LC/CON/H/01A/14

AND 19 DECEMBER 2014

In the matter between

DANIEL MASHINGE						Applicant

And

POST OFFICE SAVINGS BANK					Respondent

Before The Honourable P. Muzofa, Judge

For Applicant	-	Mr. Watungwa  (Legal Practitioner)

For Respondent	-	Mr. G.M. Nyangwa(Legal Practitioner)

MUZOFA, J:

This is an application for Condonation for the late noting of an appeal.

The factors to be taken into consideration in an application such as this are the extent of the delay, the reasonableness of the explanation for the delay and the prospects of success see General Kodzwa v Secretary of Health and Another 1999 (1) ZLR 313 (S).  I propose to consider the said factors in relation to this case.

The extent of delay

According to the respondent applicant received communication of the Appeals Board decision on 28 January 2013.  In the applicant’s heads of argument it was submitted the applicant received such communication in the first week of February 2013.  However applicant’s affidavit indicate that on 30 January 2013 he approached ZIBAWU to seek legal advise.  It would only be reasonable to infer that respondent’s version is the correct one.  Clearly what is in the heads of argument can be seen as an attempt to reduce the extent of delay.  The application for Condonation was filed with this court on 2 January 2014.  The extent of delay is about twelve months.  A delay of twelve months cannot be said to be ordinate, generally depending on the other factors a delay of twelve months is inordinate.

The explanation

Often times the determination of such a consideration means there has been same extent of negligence.  The explanation should be such as to excuse the negligence.  In his affidavit the applicant intimated that on 30 January 2013 he approached ZIBAWU a trade union organization for advice on his prospects of success on appeal.  He was advised he had no prospects of success and the organization declined to file an appeal on his behalf.  He had no financial resources to instruct legal practitioners.  It was until November 2013 that he instructed legal practitioners Chakanyuka and Associates Attorneys who in turn filed this application.  Despite the law firm Chakanyuka and Associates Attorneys having filed the application, Mr. Watungwa of Watungwa and Partners appeared before the court after the erstwhile lawyers renounced agency.  It was submitted for the applicant that the delay in filing the application for condonation of the appeal from November to January 2014 was a result of yet other legal practitioners C. Nhemwa & Associates who demanded a deposit for legal fees before filing the application.  Applicant eventually approached the legal practitioners or record in January who then took up the matter.

The explanation by applicant brings to the fore two reasons for the delay.  Firstly that he received wrong advise and secondly that he was financially incapacitated to instruct legal practitioners.  In my view it is not for the applicant whether he received wrong advice or not.  This case, the appeal so to speak was his case, it is common knowledge in the practice of law that litigants give instructions to representatives.  It was up to the applicant to instruct a representative to take up his matter.  In any event there is room in our courts for unrepresented litigants to prosecute their cases.  Applicant did not choose this route.  Applicant, chose to engage a representative which of course was within his rights.  However in order to secure legal representation applicant must of necessity have the financial capacity.  In this case it seems applicant did not have the financial capacity to instruct a legal practitioner.  Financial incapacity is a reality, however a balance has to be struck with finality to litigation.  In my view the respondent after the lapse of twenty one days and was not served with a notice of appeal, considered the matter finalized.  However to be served with process of a case after twelve months would be unfair on the respondent.  If indeed prosecution of the appeal was applicant’s priority he would have filed the appeal as on unrepresented litigant.  By exercising his right to be represented he invariably should have the financial resources.  It would be inconceivable that applicant expected legal representation without the correspondent legal feels.  Legal practice is also a business although concessions can be made.  In my view the applicant has no reasonable explanation.  No one stopped him from filing his appeal and prosecuting it as an unrepresented litigant.

Prospects of success.

The court was not favoured with the grounds of appeal that applicant seeks to impeach the decision of the Appeals Board of the respondent.  That as it may be in the applicant’s heads of argument it was submitted that the appeals Board erred by upholding the decision of the Disciplinary committee.  The facts of the case are that upon dismissal by the disciplinary committee applicant noted an appeal to the grievance and disciplinary committee (GDC).  The GDC on two occasions failed to reach a consensus on the penalty.  The GDC then referred the matter to the Appeals Board.  The Appeals Board then considered the matter and upheld the decision of the disciplinary committee.  The Respondent’s code of conduct is very clear where a deadlock such as the one that happened on the procedure to be followed.  Section 6 (5) of the Banking Undertaking Statutory Instrument 273 of 2000 provides as follows,

“… should the grievance and disciplinary committee fail to reach a consensus, a further meeting shall be convened after not less than three working days … should the committee fail to reach a consensus the second time the secretary of the committee shall forward a written record of proceedings within a further seven working days to the appeals Board for consideration.  The appeals board shall determine the matter on the papers.”

In my view prima facie the GDC complied with the Code of Conduct. By empowering the GDC to refer the record of proceedings to the Appeals Board albeit without a consensus having been reached the only reasonable inference is that the Appeals Board was empowered to make a decision in the absence of a GDC decision.  Applicant’s assertions are untenable.  I do not believe the applicant has prospects of success on appeal.  Clearly this application should be dismissed considering all the factors applicable in such a case.  The following order is made.

The application for Condonation for late noting of an appeal be and is hereby dismissed with costs.

F. WATUNGWA & PARTNERS, Applicant’s legal practitioners

MAWERE & SIBANDA, Respondent’s legal practitioners