Gerald Kambadza v Zimbabwe Leaf Tobacco Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 22 JANUARY 2024
JUDGMENT NO. LC/H/42/24 CASE NO. LC/H/952/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 22 JANUARY 2024

AND 9 FEBRUARY 2024

IN THE MATTER BETWEEN:-

JUDGMENT NO. LC/H/42/24 CASE NO. LC/H/952/23

GERALD KAMBADZA	APPLICANT AND

ZIMBABWE LEAF TOBBACCO COMPANY

(PVT) LTD	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Mr. A.T. Nhidza

For Respondent	Mr. S. Sadomba

MURASI J:,

This is an application for Condonation and Extension of time within which to file an Application for Leave to Appeal to the Supreme Court. A brief background of the facts is necessary.

BACKGROUND FACTS

Applicant filed an application for condonation of the failure to file an appeal timeously under case number LC/H/157/23. On 13 June 2022, after hearing the parties, the Court proceeded to render an Ex Tempore Judgment on the same date dismissing the application. The Applicant proceeded to file an application for leave to appeal under Case Number LC/H/531/23. This matter was set down for hearing on 27 September 2023. However, Applicant was not in attendance. The application was struck off the off the roll. It is pertinent to note that after the judgment of 13 June 2022, Applicant’s representative requested for ‘a full judgment’ in a letter dated 18 May 2023. The attempt to file an application for leave to appeal in 2023 without seeking condonation thereof was therefore not in compliance with both the Act and the Labour Court Rules, 2017.

THE PRESENT APPLICATION

Mr. Nhidza stated that he was going to abide by the documents filed of record. The same was stated by Mr. Sadomba for the Respondent. In seeking clarifications, the Court posed the following questions to Applicant’s representative:

“Court:The Court Order was issued in June 2022 and a request for reasons was made a year later. Why?

A:	The order which was made was not speaking to any questions of law. Court: The order was made in the presence of Applicant’s representative?

A:	Indeed.

Court: The reasons for the Order were announced in Court?

A:	Indeed, what the Applicant expected were written reasons. Court: What you wanted was a full judgment?

A:	I think the full judgment was what was necessary- even though the reasons were there on record.

Applicant’s Founding Affidavit contains a plethora of submissions. I also observe that it is not customary to refer to or cite precedent in an Affidavit. However, the Applicant has proceeded to make legal argument in the affidavit which should be reserved for heads of argument. The Founding Affidavit has the following information:

“6.1 As aforesaid, the full judgment sought to be challenged was handed down on 13th June 2023. I had on the 6th of July 2023 filed the Application for leave to appeal under LCH 531/23, as shown in the extract thereof filed annexure 2. Unfortunately, it was struck off the roll, as shown in attached annexure 3, by reason that it was improperly before the Court and non-compliant with Rule 43 (1) of the Labour Court Rules, 2017.

6.2 I would assume that the Court’s reasoning in striking off the roll the intended leave to appeal was in view of the fact that it had on the 14th of June 2022, ex tempore, verbally pronounced the Judgment dismissing the aforesaid condonation referred in paragraph 5 above. It (the Court) instead, on the 16th of June 2022, handed down an Order No. LC/H/ORD/340/2022 dated 13th of June 2022 filed herein as annexure 4 dismissing the aforesaid condonation.

7.2 From the foregoing, I believe, that the 13th of June 2022 Order handed down on the 16th of June 2022 was not appealable. I this remained expectant that the Court would issue an appealable, fillable and written Judgment it had pronounced ex tempore on the set down date. However, when it did not, I, on the 15th of July 2022 requested for same through a letter filed herein as annexure 5. However, the request was not responded to. I would not know why, but I could not have unreasonably cajoled the Court. I therefore

resorted to tele-follow ups with the Registrar, and at some point in time I was advised that the Judge, Murasi J who had presided over the case was on leave.

8.10 months later, realizing that the judgment was not coming, I on the 15th of May 2023, instructed my representative to write another follow up attached herein as annexure 6 under Court Request No CR0000008302.

9.2 I thus did not even know that the said Order had been handed down on the 28th of September 2023 and to make matters worse I had long lost communication with my representative because there is no network connectivity home. I only came back to buy my farming inputs on the 8th of November 2023 whereupon visiting my representative I was advised of the development and immediately instructed him to file this application.

10. The 12 months delay of the Judgment, after the 13th of June 22 Order, having been at the Court’s instance, and I having sought the leave to appeal against the 13th of June 2023 Judgment by the 6th of July 2023, the 17th day of the 21 days expected of me to so act by the rules, the degree of non-compliance with the Rules is not deliberate, neither is it extreme to disable the Court from granting the condonation and extension of time to file the leave to appeal.

The Court, in my view, with respect, did not judicially consider that the primary reason and explanation for the delay of the appeal in that it was necessitated by the confusion in the law itself.

I had otherwise timeously filed the appeal in terms of Section 8 (6) of the Respondent’s preferred Statutory Instrument 15 of 2006 (the code of conduct) to the Labour Officer. In other words, there would not have been any need for an application for condonation and extension of time within which to file the appeal had that confusion not been there in the first place.”

Respondent’s Opposing Affidavit contains the following information:

“6. As observed by this Honourable Court in its judgment in respect of the application for condonation, the ex tempore judgment was delivered on the 14th of June 2022 dismissing the application for condonation for late filing of an appeal. Applicant’s representative only requested written reasons from this Honourable Court almost a year later after the handing down of the ex tempore judgment. The delay in requesting reasons for the dismissal of the application for condonation shows a lack of seriousness on Applicant’s part.

9. It is common cause that this Honourable Court handed down its reasons for dismissing his Application for Condonation, Applicant filed an Application for Leave to Appeal under case number LC/H/531/23. That application was opposed by the Respondent.

Accordingly, his application was struck off the roll for want of prosecution and on the basis that he had not filed an Application for Condonation before filing the Application for leave to Appeal.

It was Applicant’s choice to file an Application for Leave to Appeal without filing an Application for Condonation. It was also his choice not to attend the hearing scheduled for the 27th of September 2023.

It is a fact, as confirmed by the judgment of this Honourable Court, that as far back as May 2020, Applicant was made aware of the correct position regarding appeals in terms of SI 15 of 2006 and that his appeal before the Labour Officer was invalid. Yet Applicant did not take any steps to regularize the matter.

It is clear from his proposed appeal that Applicant intends to challenge the factual findings of the Disciplinary Authority, which were confirmed by the Appeals Committee. Applicant can only succeed in challenging the factual findings of the Disciplinary Authority as well as the Appeals Authority if he is able to prove that there was a gross misdirection by the Disciplinary Authority in his assessment of facts based on the evidence led before him. That is not borne from the papers before the Honourable Court.

Both parties support these averments in the heads of argument filed of record.

ANALYSIS

I will first deal with the issue of the Ex Tempore judgment. That the Court gave reasons for the Order granted in June 2022 is accepted by the Applicant. It is also admitted that the Ex Tempore judgment had WRITTEN reasons. This was confirmed by Applicant’s representative during the hearing in questions posed to him by the Court when seeking clarifications. It is trite that there is no statutory provision requiring a judge to furnish reasons for his/her Order. However, it is a truism that reasons for a decision are indispensable in the appeal process. Further, it is also a truism that Judges ordinarily account for their decision by giving reasons as this explains to the parties, and to the public at large which has an interest in courts being open and transparent, why a case was decided as it was. (See generally Mphahlele v First National Bank of South Africa Ltd 1999 (2) SA 667 (CC)). I also associate myself with the comments made by HOLLAND-MUTER AJ in Aphiri vs Mohalelo and Another where he had this to say:

“In Strategic Liquor Services v Mvumbi T NO and two Others 2010 (2) SA 92 CC par (16), with reference to Mphahlele v First National Bank Ltd at para 12 and 67 it was held that there is no express statutory provision requiring judges who have given judgment ex tempore to furnish written reasons when later required. In this matter a comprehensive ex tempore was given and in my view there is nothing more to add to ‘clarify’ any uncertainty the appellant may have. The appellant was informed that no further reasons would be given.”

The Applicant did not refer to the inadequacy or otherwise of the Ex Tempore judgment. This was delivered in the presence of Applicant’s representative as stated above. There was no requirement to furnish further reasons even though a judgment was later availed. There was a suggestion that the Ex Tempore judgment did not have ‘points of law’. I am not sure what was meant by such an averment. The clear position was that the Applicant only needed the written reasons to be transcribed as this was a judgment delivered by the Court.

A reading of the Founding Affidavit attempts to lay the blame on the Court. I have already indicated that the Ex Tempore judgment was available on the date of the Order. Why was the request for a full judgment only made a year later? After the request, the Court clearly underscores this fact at the beginning of the judgment. This is clearly borne out by Applicant’s own explanation. For example, in paragraph 8 Applicant explains that ’10 months later’ upon a realization that the judgment was not forth-coming, Applicant decided to make a follow up. This cannot be a description of a vigilant and diligent litigant. What follows is something that can only be found in fiction books. After getting the ‘full judgment’ in June 2023, a year later, Applicant proceeded to file an application for leave to appeal. As pointed out by the Respondent, there was no application for condonation of the late filing of that application. To put the icing on the cake, Applicant did not attend the proceedings on the set down and the matter was struck off the roll. Applicant did not request for reasons on this occasion. That is why the Founding Affidavit is speculative on the reasons for the striking the matter off the roll. aaragraph 6.2 has the following excerpt:

“I would assume that the Court’s reasoning in striking off the roll..”

This is not factual. Applicant did not attend the proceedings. Applicant states that he ‘had long lost communication with (his) representative because there is no network connectivity home’. aresumably this was the reason he did not know about the set down date. There is no Supporting Affidavit from Applicant’s representatives explaining what happened on this occasion as the Applicant has been unable to enlighten the Court. There is a huge gap in the explanation tendered.

What has been the position of the courts as regards explanations for delay? In Chiutsi v The Sherriff of the High Court and Others SC 2/19, it was held as follows:

“A litigant’s explanation for his or her non-compliance must be devoid of any undertones of complacency regarding the observance of the rules of the court and it must be adequate and tolerable”

In Lunat v Patel SC 47/22, CHATUKUTA JA had this to say:

“A party seeking condonation and extension of time must satisfy the court that a valid and justifiable reason exists as to why compliance did not occur and why non-compliance should be condoned. Further, regardless of the prospects of success, a court may decline

to grant condonation where it considers the explanation for failure to comply with the rules unacceptable.”

Turning to the facts of this matter, Applicant was informed of the reasons of the Order on the date it was delivered. The reasons were in written form. Applicant did not take any action. He alleges that he later wrote to the Registrar requesting for those reasons. He left the matter and only awakened some ‘ten months’ later and made a request for a full judgment. This was availed on 13 June 2023. He proceeded to file an application for leave to appeal without seeking condonation as he was out of time by a full year. On the date of the hearing, Applicant was in default and the matter was struck off the roll. Applicant makes the explanation that he was no longer in touch with his representative as he was in the communal lands and connectivity was bad. Do all the above constitute a reasonable explanation? In Hughber Petroleum (Pvt) Ltd & Anor v Brent Oil Africa (Pty) Ltd 2014 (1) ZLR 200 (H), MATHONSI J (as he then was) had this to say:

“These courts will never accept legal practitioners who elect to conduct their practices tardily and in a chaotic manner to extend such tardiness and chaos to the doorsteps of the court. Courts of law have a duty, not only to conduct their affairs in a dignified and transparent manner in dispensing justice, but also to protect their integrity against the machinations of the bad elements in the profession.”

Applicant’s representatives were not diligent in dealing with the matter. Their approach amounted to negligence. Can this be attributed to the Court and its processes? Hardly.

Are there any prospects of success that the Court erred in dismissing the application for condonation to note an appeal? Applicant seems to rely on his mistake in approaching the Labour Officer instead of appealing to this Court. Firstly, it is not in dispute that as early as 2020 Applicant was informed of the precedent which showed the route to take and he ignored such advice. Secondly, it has been stated in precedent that the fact that this issue was brought to the fore in the Mabeza case does not mean that it was new development. The cases only confirmed an existing legal position as the law was always there. In Tendai Bonde v National Foods Limited and Others SC 9/24, it was stated as follows:

“I agree with Mr. Maguchu for the first respondent, that his failure to comprehend the Supreme Court Rules cannot be regarded as a reasonable excuse for the delay.”

The other reasons for stating that there are no prospects of success as given in the original judgment are still relevant.

In the result I find that there is no merit in the application and it ought to be dismissed. The Court makes the following Order:

The application for condonation of the late filing of an application for leave to appeal to the Supreme Court is hereby dismissed for lack of merit.

Applicant to meet Respondent’s costs.