Hwange Coal Gasification Company v Jenfan Muswere

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/115/16
HELD AT HARARE 1 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/115/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/115/16

HELD AT HARARE 1 FEBRUARY 2016				CASE NO LC/H/APP/925/15

& 4 MARCH 2016

In the matter between:

HWANGE COAL GASSIFICATION COMPANY			Applicant

And

JENFAN MUSWERE						Respondent

Before The Honourable L M Murasi, Judge

For Applicant			Ms L Shambamuto (Legal Practitioner)

For Respondent		Mr S Chako (Legal Practitioner)

MURASI, J:

This court granted an application for late noting of appeal in favour of the respondent.  The applicant is dissatisfied with the decision of the court in this respect.  The applicant intends to approach the Supreme Court for relief.  This is therefore an application in terms of section 92 F (I) of the Labour Act [Chapter 28:01].

Applicant’s intended grounds of appeal are formulated as follows:

The court erred on a question of law by failing to hold that the extent of the respondent’s delay in filing the application for condonation of late filing of the appeal was inordinate, grossly unreasonable and legally unpalatable.

The court erred on a question of law by failing to hold that the explanation given by the respondent for the delay was grossly unreasonable and legally untenable.

The court erred on a question of law by failing to hold that the respondent did not enjoy any prospects of success on appeal as he palpably and dismally failed to prove his entitlement to the salary he sought before the arbitrator as per the trite legal principle that he who alleges must prove.

The court erred on a question of law by failing to hold that a mere internal proposal letter for salary increases from the respondent’s superior did not give the respondent any legal right to a salary increment as same was rebutted by the appellant.

Ms Shambamuto stated that she abided by the documents and heads of argument filed of record.  It was submitted that the court had erred in that the delay was approximately one year three months and the court should have held that the delay was inordinate.  It was further submitted that no reasonable explanation was tendered by the respondent as to why he failed to seek condonation as the award was issued on 25 November 2013.  It was argued for the applicant that the reason proferred by respondent that he was attending to a criminal case cannot stand as a valid explanation.  Ms Shambamuto’s heads of argument further averred that the respondent had not shown in what manner he had been prevented from noting the appeal by the criminal case in question.  As to the prospects of success on appeal, the applicant stated that applicant has prospects of success as the court had not properly found that respondent had made out a case in which he had prospects of success on appeal.  It was further argued that the finding by the court of prospects of success on the respondent’s part was not supported by the evidence that was placed before the arbitrator.

Mr Chako  for respondent stated that he abided by the documents filed of record.  It was submitted that applicant was seeking to appeal against factual findings.  It was further submitted that leave to appeal can only be granted if an applicant shows that the court failed to weigh factors properly before granting condonation.  It was argued that there was a serious misdirection.

Mr Chako further stated that the court has discretion to grant condonation and the applicant had not shown that the exercise of this discretion was irrational.  As to prospects of success on appeal, the respondent submitted that applicant did not have any prospects of success and the application should be dismissed.

It is trite that the approach in such cases is to assess whether there are reasonable prospects of success on appeal.  The court should not put too much confidence in its own judgment.  The court should determine whether there is a reasonable prospect of the Supreme Court arriving at a different decision on the same facts.  The Supreme Court will interfer with a lower court’s decision where there is an irregularity or misdirection.

In the judgment of this court, it was held that it was common cause that respondent had been arrested and detained at the instance of one of appellant’s directors.  It was also common cause that respondent was subsequently prosecuted and convicted of the criminal offence.  It was also common cause that the respondent only obtained some measure of freedom after lodging his appeal with the High Court.  It is also common cause  that the appeal is still pending before the High Court.  The applicant does not dispute these facts.  Applicant alleges that respondent took long to approach the court and the explanation he tendered that he was attending to the criminal case was not reasonable and therefore unacceptable.  This is a factual situation which does not require the services of an expert to unravel.  Applicant admits that respondent was attending to the criminal case.  Applicant does not deny that the sentence imposed upon respondent required of him to make repeated visits to the courthouse in order to solve the predicament he found himself in.  I do not see the unreasonableness of such explanation especially where applicant admits that respondent was labouring under a criminal sanction he had to attend to.  At page 4 of the judgment, the court made the following observation from precedent:

“… that in all instances of time limitation, whether statutory or in terms of the rules, the court has an inherent right to grant condonation when principles of justice and fair play demand it to avoid hardship and when  reasons for non-compliance with time limits have been explained to the satisfaction of the court.  It is my view that applicant has put his predicament before the court.”

What the court exercised in this regard was discretion.  In such determinations where discretion is exercisable, it should be exercised judicially upon consideration of all the facts and the court should ensure that there is fairness to both sides.  The other ingredient is that the discretion so exercised should be in the best interests of justice.  Apart from making averments that the court “erred in making a finding” the applicant has not demonstrated in what manner the court misdirected itself in arriving at the decision that it did.  The applicant has not shown in what manner the decision of the court can be held to be irrational.

Turning to the prospects of success, the court is of the view that the applicant’s efforts to show that there are prospect of success on appeal are a mere “clutching” at straws.  Applicant attempts to show that reliance should not have been had to the Executive Director’s letter in showing that respondent was entitled to a salary increase and this had good prospects of success on appeal.  At page 4 of the judgment I address this issue thus:

“A reading of the letter in question shows ex facie that it is not a recommendation.  It actually gives the dates and the respective salaries of the individuals mentioned in that letter.  A further reading of the affidavit in question does not “disown” the letter in question.”

My conclusion was therefore that on the facts as shown in the record, there was need to allow the respondent to ventilate the arguments related to the letter in question and that ex facie those facts, there are reasonable prospects of another court arriving at a different conclusion.  These are what are referred to as prospects of success on appeal.  The applicant has simply attacked the decision and stated that it was a misdirection.  It does not explain away the contents of the latter from the Executive Director so as to state that it is non-existent evidence.  As long as applicant admits that such a letter exists, it is subject to the determination of a court on appeal and the likelihood of a different court viewing it differently are there.  Therefore this court’s decision on the prospects of success on appeal is unlikely to be upset by the Supreme Court.  I associate myself with the sentiments of GARWE JA in Fiona Chikurunhe & 234 Others v Zimbabwe Financial Holdings S 10/08 where he stated thus:

“The party seeking leave must show inter alia that he has prospects of success on appeal.  In other words, leave is not granted simply because a party has sought  such leave.”

In conclusion, the court finds that the application for leave to appeal to the Supreme Court is devoid of merit.  It is accordingly dismissed.

Matsikidze & Mucheche, applicant’s legal practitioners

J T Mawire & Associates, respondent’s legal practitioners