Godfrey Murumbi v Varichem Pharmaceuticals (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/104/2023
HARARE 20th October, 2021 and 31st March, 2023
CASE NO LC/APP/247/20
GODFREY MURUMBI
APPLICANT
VARICHEM PHAMACEUTICALS (PVT) LTD
RESPONDENT
Before the Honourable Chivizhe Judge:
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==============================GODFREY MURUMBI

APPLICANT

VARICHEM PHAMACEUTICALS (PVT) LTD

RESPONDENT

Before the Honourable Chivizhe Judge:

For Applicant    Mr D. Chiwara (Trade Unionist)

For Respondent    Mr C. Mucheche with Mr E. Matsananura (Legal Practitioners)

CHIVIZHE, J:

The application was placed before me on the 13th of October, 2021 as an application for condonation of late noting of an appeal and extension of time within which to note an appeal. The parties having appeared before the court and made oral submissions the court reserved judgement. On 20th October 2021 the court handed down an order dismissing the application on the basis of failure to meet the requirements of the application. The Appellant having written a letter to the Registrar dated 7th April, 2022 requesting the reasons the following are the reasons for the order.

BACKGROUND

The application for condonation was filed on 4 September 2020. The application was opposed by the Respondent. In his founding affidavit Appellant averred that he was a former employee of the Respondent. He was employed as a Research and Development Technician. He had been dismissed from employment on 29th of November, 2019 following a disciplinary process where he was facing charges of theft, embezzlement and misuse of company property. A Disciplinary Committee set up to hear the matter had found him guilty of all the charges levelled. An internal appeal was equally unsuccessful. He had then appealed to the National Employment Council (NEC) for Chemical Fertilizers, Chemicals, Batteries Manufacturing and
 Industries of Zimbabwe. That committee also dismissed his appeal. Unperturbed the Appellant’s intention was to appeal in this court against the decision of the NEC Appeals Committee. Because however the intended Appeal was out of time he had placed before this court his application for condonation.

In regards the requirements of the application Applicant submitted that the delay was considered to be inordinate (i.e. 7 months). He however had a reasonable explanation for the delay. There were two factors involved, firstly, the issue of financial constraints and secondly, the Covid 19 isolation regulations which had resulted in disruption of court business generally. Applicant submission was that this had restricted his movement.

On the issue of prospects of success he believed he had good prospects as it was his view that Respondent had failed to canvass all the essential elements of the various charges levelled against him. Further the witness Respondent had relied upon had proved to be unreliable and given contradictory statements in the hearing. The Applicant also took issue with the fact that no investigation had been conducted contrary to requirements of the Code of Conduct. Reference was made to S.I. 111 of 2011 as being applicable. It was on this basis he believed he had reasonable prospects of success on appeal. In oral submissions before the court his representative emphasised on the fact of his 28 years of service given to Respondent based on which if this court did not grant condonation he stood to lose his terminal benefits. The case was therefore very important to the him for that reason. On the issue of prejudice it was submitted that Respondent would suffer no prejudice were the court to grant condonation as sought. On this basis Applicant prayer was for the court to grant his application for condonation and extension of time within which to note his appeal.

Respondent through his papers was opposed to the granting of the application. Through its Opposing Affidavit submissions were made that generally the Applicant had no reasonable explanation for the delay. On the issue of Covid 19 Lockdowns Respondent position was that these were only put in motion in March 2020 before then courts were fully operational. Applicant having received the determination of the NEC Appeals Committee on 15th of January, 2020 should have filed his appeal with 21 days of this date. There was no explanation why this was not done. The Covid 19 lockdowns were only being raised as a ruse.

On the issue of prospects of success the Respondent position was that Applicant had no prospects of success on appeal as credible evidence had been presented in the disciplinary hearing to found his conviction on the charges levelled. The Appeals Committee had also been correct in upholding the conviction and the penalty. With regards Applicant submission on the importance of the matter, Respondent refuted the submission on the basis that Applicant was not being honest, he could not have delayed by 7 months if the matter was important to him. On the issue of financial constraints the Respondent position was that the explanation was not a plausible explanation, Applicant was being represented by a Trade Union on the basis of his membership of the Trade Union there was therefore no money required to process his application. On the issue of prejudice, it was Respondent position it clearly stood to be prejudiced were the court to grant the application for condonation. The Respondent had concluded the matter and regarded the matter as closed. They could not be drawn back to address the same issue. There was a need for finality in litigation.

In oral submissions, Respondent’s Counsel emphasised that the application was totally devoid of merit. Not only was the extent of delay inordinate, the explanation tendered was also inadequate/unreasonable in the circumstances. On the issue of prospects of success Respondent position was that they were poor. Respondent counsel also alluded to the factual detect in the application itself. It was submitted that the draft Notice of Appeal was defective as to result in a nullity, Grounds 2 and 3 were also review and not appeal grounds. In regards the merits it was clear the Applicant had been properly convicted of four charges levelled. The charges were all based on dishonest conduct. Counsel explained in detail the nature of the allegations that included Applicant supplying falsified medical products to clients. The matter had been investigated not only by police but by also the Medical Controlling Authority of Zimbabwe (MCAZ) a statutory body set up to oversee the management and control of drugs and allied substances. There was on record a letter by the same body where the Respondent of was advised of an investigation carried out at one pharmacy which revealed that Applicant had supplied substandard and falsified products. The MCAZ was recommending that Respondent carry out its own internal investigation into the matter.

In regards, the issue of prejudice, Counsel submitted that Respondent stood to be prejudiced were the court to allow condonation in order to hear the appeal in such circumstances of overwhelming evidence of guilt on the part of the Applicant. The offences committed by Applicant were so serious, and had the effect of tarnishing Respondent image and also carried grave risk to members of the public purchasing the counterfeit products.

It was after consideration of the submissions by both parties and upon perusal of the record of proceedings that the court handed down an order dismissing the application. In arriving at the decision the court applied the principles as laid down in various authorities, including Bishi vs Secretary for Education 1989 ZLR 240 (HC) where the factors to be considered in an application for condonation for late filing of an appeal were outlined as follows;

(i) Degree of non-compliances
(ii) The explanation thereof
(iii) The importance of the
(iv) Convenience of the court
(v) The avoidance of unnecessary delay in administration of justice.

It was clear that the application had failed to meet all the requirements. Not only was the period of delay inordinate (Applicant conceded to this) the explanation tendered was also unreasonable. The explanation of limited movement due to Covid 19 Lockdown was merely a ruse as the first lockdown was only in March 2020. The courts took the view that no convincing explanation had thus been tendered by Applicant as to why he had not filed his appeal in January/February 2020. On the merits it was clear that Applicant had poor to nil prospects of success. He had been convicted on very serious charges involving acts of dishonesty which were potentially harmful not only to his employer but to the public at large as he had been involved in circulating fake counterfeit products e.g. cough mixtures as evidenced by the MCAZ report in the record. The evidence of his guilt was so overwhelming that even the fact of his 28 years of service paled in significance. As submitted by Respondent the fact of his long service should have actually been utilised to protect his employer image not to destroy its image. The application for condonation was totally devoid of merit. It was also apparent that the intended appeal was in any event bound to fail due to the fatal defects as alluded to by the Respondent Counsel which issues the Applicant had clearly not responded to. It remains trite that what has not been challenged is taken to have been admitted. It was on this basis the court issued an order dismissing the application. These are my reasons for the order granted.

Caleb Mucheche & Partners Law Chambers, respondent’s Legal Practitioners
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