Hwedza Rural District Council v Enock Madzamatira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
7 OCTOBER 2025
JUDGMENT NO. LC/H/372/25
CASE NO. LC/H/680-25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 7 OCTOBER 2025

AND 9 OCTOBER 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/372/25 CASE NO.	LC/H/680-25

HWEDZA RURAL DISTRICT COUNCIL	APPLICANT AND

ENOCK MADZAMATIRA	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Mr. T. S. Musundire

For Respondent	Mr. T. E. Mudzuri

MURASI J.,

This is an application for condonation of the late filing and extension of time within which to file an appeal.

The brief background of the matter is that Respondent was employed by the Applicant as a planner. He is alleged to have represented to the Applicant that Subdivision had taken place on Stand 1283 Hwedza Township. It was alleged that this was false information as Respondent’s duties entailed creating stands in terms of the Regional Town and Country Planning Act and that there was no evidence that this had been done. Respondent was brought before a Disciplinary Committee which found him guilty and recommended his dismissal from employment. Respondent’s appeal to the Appeals Committee was not successful and he later approached the NEC Exemptions Committee for relief. The latter committee found in Respondent’s favour. Applicant is disgruntled with the outcome and intends to appeal against the decision but it is out of time in terms of the Rules. Hence the present application.

Preliminary Issue

At the commencement of the proceedings, Mr. Mudzuri stated that he had an application to make. He stated that Respondent had not filed heads of argument in the matter. He submitted that Respondent’s legal practitioners had not been aware that Applicant had filed heads of argument and thus Respondent was also required the heads of argument. Mr. Mudzuri further submitted that the Respondent’s legal practitioners had only become aware of this development when they received the Notice of Set Down. He added that at this juncture, Respondent’s legal practitioners did not do anything and waited for the hearing date to make the oral application.

He submitted that, meanwhile, Respondent's legal practitioners had drafted the heads of argument and was thus applying for the upliftment of the bar operating against the Respondent to enable the uploading of the said heads of argument. To this end, he was therefore applying for a postponement to a suitable and convenient date or that the matter be stood down to the afternoon for the process.

Mr. Musundire vehemently opposed the application. He stated that the Respondent had not had the courtesy of informing the Applicant of this development and had not given any prior notice of his intentions. He added that Respondent could have at least filed a Chamber Application seeking such condonation but this had not been done.

In an Ex Tempore decision, the Court dismissed the application. The Court stated that Respondent was not being candid in the application. The IECMS platform provides that a litigant has to provide two emails. This legal requirement means that at least two persons will receive the communication. Secondly, Respondent’s legal practitioner decided to do nothing when he received the Notice of Set Down and awaited the day of reckoning in order to make a plea for compassion. It goes without saying that after filing the Notice of Response, Respondent’s legal practitioners became disinterested in the matter as they were supposed to check whether Applicant had filed heads of argument within the prescribed period of time. No Chamber Application was filed with the Court to rectify the situation. There was no Notice of intention to make the present application. It would appear that Respondent’s legal practitioners were taking the Court for granted and that the application for upliftment of the bar was there for the taking. The Court made the observation that Respondent’s legal practitioners wanted its lack of diligence and tardiness to be brought to the doorsteps of the Courthouse. That cannot be condoned. The Court declined to uplift the bar operating against the Respondent and stated that Respondent remained barred.

The Merits

Mr. Musundire submitted that the Applicant had initially filed an appeal on 27 August 2024. This appeal was later discovered to be defective and was withdrawn on the court date which was 7 November 2024. He further stated that the legal practitioners had then surrendered the matter back to the Applicant for further instructions. Mr. Musundire further stated that Applicant acts through its Councillors and it took some time for the matter to be deliberated upon as the administrators did not have the authority to make decisions. He further submitted that Applicant later communicated the decision to its legal practitioners in July 2025. He however made the concession that the explanation was somewhat inadequate.

As to the prospects of success, Mr. Musundire submitted that there were prospects of success as the Exemptions Committee had misdirected itself in stating that what the Respondent had done was simply to make a recommendation and not a decision on behalf of the Applicant. He also conceded that the Respondent reported to one Magaya who was Respondent’s immediate supervisor. The said Magaya was the one who was responsible for making decisions in the department. Asked by the Court whether Stand 1283 was indeed subdivided, he replied in the negative. At one stage he insisted that Stand 1283 did not exist. Mr. Musundire argued that the facts exhibited in Annexure H7 clearly showed that Respondent was guilty of the offence charged. He insisted that the documents showed that Respondent had misrepresented that the stands had been subdivided. He urged the Court to grant the condonation.

ANALYSIS

In Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and Others (2010) 31 ILJ 1413 LC at para [13] the relevant factors to be considered in an application for condonation were aptly captured as follows:

“In explaining the reason for the delay, it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This in my view requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a recordal of the dates relevant to the processing of a dispute or application as the case may be.”

In Ganda & Ors v First Mutual Life Assurance Society 2005 (1) ZLR 37(S), SANDURA JA had occasion to cite the decision of MULLER JA in P.E. Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799 D-E thus:

“In a case as the present, where there has been a flagrant breach of the Rules of this court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.”

The issue which arises for determination is whether Applicant has tendered a reasonable and acceptable explanation in the circumstances. It is pertinent to note that it has been stated in a number precedents that a person seeking condonation of the late noting of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation. In the present matter, Applicant’s legal practitioner sought to begin the counting from the date the defective appeal was withdrawn instead of from the date when the decision was rendered by the Exemptions Committee. Mr. Musundire made the concession that what had been filed as an appeal was in fact defective amounting to a nullity. Applicant, therefore, cannot be seen to be taking into account the nullity for the purpose of explaining the delay. Even if the Court were to be magnanimous, there is a period of inactivity from November 2024 to July 2025 which is unaccounted for. The simple explanation that was given was that the matter had not been placed on the agenda for deliberation. The Applicant gives the following explanation in the Founding Affidavit:

“After the matter was withdrawn on 7 November 2024 the matter was referred back to the Applicant for deliberation. The Applicant consulted its legal practitioners on 10 July 2025 for a fresh appeal and application for condonation. The Applicant is a legal entity that requires permission for litigation through council meetings. From the time of the appeal withdrawal until the instruction to file a new appeal, the Applicant, through its responsible agents, had to consider whether to proceed with a fresh appeal.”

I make the observation that the statement given in the Founding Affidavit is demonstrably vague in the circumstances. After having stated that the Applicant acts through the decisions of Councillors, the Court is the non-wiser as to when the council finally decided to deliberate on the matter. Was it at the beginning of January? Was it at the end of May 2025 or in July

2025? It is trite that an Applicant’s case stands or falls depending on the averments made in the founding affidavit. In Stevenson v Minister of Local Government & Others 2002 (1) ZLR 498 (S), it was held as follows:

“And, as has been said repeatedly, an Applicant must stand or fall by founding affidavit and the facts alleged in it.”

The Founding Affidavit does not explain when the matter was deliberated upon by the Applicant. The time between November 2024 and the decision of July 2025 is not explained at all. It is anyone’s guess as to what was happening during that period of time. This does not place the Court in a position to assess the explanation for the delay. The explanation, in my view, is woefully deficient. It is not a reasonable explanation and therefore unacceptable.

The prospects of success have not been sufficiently motivated by the Applicant. The Applicant takes issue with the decision of the Exemptions Committee. It is trite that an appellate court will only interfere with the factual findings of a tribunal or lower court where there is evidence of a misdirection or that the decision is irrational. As stated in Barros & Anor v Chimphonda 1999 (1) ZLR (1) 58 (S), it must appear that some error has been made in exercising the discretion and it must be shown that the tribunal acted upon a wrong principle, allowed extraneous or irrelevant matters to guide it or did not take relevant issues into consideration. Mr. Musundire sought to argue that Annexure H7 showed that the Respondent had sought to mislead the Applicant about Stand 1283. My view is that Respondent brought to the attention of Mr. Magaya, his superior about the stand in question. He did not state that the stand had been subdivided. When Mr. Magaya sought clarification on the issue, the response is found in Annexure H9. Respondent’s response was given as follows:

“Stand 1283 is a corner stand measuring approximately 900 square metres and was surrendered back to Council by the former owner. In a discussion I proposed that we align the stand size to the general character of the stands in the area by subdividing into two stands to that would give us stands 1283A and 1283B. This recommendation to you could be achieved in the envisaged short space of time through a site planning once we carried it out in collaboration with Department of Physical Planning.”

The proposal he made links to the Annexure H7 which shows Stands 1283A and 1283B. There is no indication in the documents that the subdivision had taken place. It would appear that such subdivision could not take place without Mr. Magaya being aware of it and with his approval. The Exemptions Committee found that this was a recommendation. This is what any reasonable tribunal would have arrived at ex facie the documents availed. The other issues raised by the Applicant in the prospective appeal are ancillary and procedural matters dealing with the composition of the Disciplinary Committee which are incapable of disposing of the main matter. It is thus my view that the decision of the Exemptions Committee, in the circumstances, is unassailable and therefore there are no prospects of success on appeal.

In the result, the application for condonation of the late noting of appeal and extension of time within which to file an appeal, being devoid of merit, is hereby dismissed with no order as to costs.

Warara & Associates-	Applicant’s legal practitioners

Lawmen Law Chambers-	Respondent’s legal practitioners