Jonathan Tavarwisa v Bakers Inn Bread Company

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/13/13
HELD AT HARARE ON 16th January, 2013
CASE NO.LC/H/24/10
In the matter between:
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THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO.LC/H/13/13

HELD AT HARARE ON 16th January, 2013      CASE NO.LC/H/24/10

In the matter between:

JONATHAN TAVARWISA				Applicant

And

BAKERS INN BREAD COMPANY			Respondent

Before The Honourable G. Mhuri, Senior President

For Applicant  : Mr Marume (Legal Practitioner)

For Respondent : Ms Njerere (Legal Practitioner)

MHURI G,:

This is an application for condonation of late filing of an application for leave to appeal to the Supreme Court by Jonathan Tavarwisa (Applicant).

In terms of Rule 36 of the Labour Court Rules SI 59/2006 (The Rules) a party wishing to appeal to the Supreme Court against a Labour Court decision, shall file an application for leave to appeal with the Labour Court within 30 days of the date of the judgment to be appealed against. The Rule states:-

“an application in terms of Section 92F(2) of the Act seeking leave to appeal from any decision  of the Court shall be made to be President of the Court who made the decision within 30 days from the date of that decision”

In casu, the judgment Applicant wishes to appeal was delivered on the 7th October 2011. The dies inducea expired on the 18th November 2011.

Applicant filed this application on the 26th June 2012, that is after 7 months 7 days.

In applications such as this one, the Court has to consider:

The length of the delay

The explanation for the delay, and

The prospects of success on appeal

See the case of:-

FORWARD KODZWA V SECRETARY FOR HEALTH AND SECRETARY FOR PUBLIC SERVICE COMMISSION

1999 (1) ZLR 313.

As already stated, the delay was 7 months 7 days. This is a very inordinate delay I must say.

The explanation given by Applicant for this inordinate delay was that he was looking for financial resources to engage a competent lawyer to note an appeal on his behalf. I find this explanation unsatisfactory. As correctly submitted by Respondent, Applicant did not only need the services on a Legal Practitioner to file an application. In terms of Section 92 of the Labour Act [CAP 28:01] Applicant could have enlisted the services of a Trade Union official to timeously file the application for leave on his behalf and later engage a Legal Practitioner for argument. Section 92 reads:-

“Representation of parties

A party to a matter before the Labour Court may appear in person or be represented and appear by –

a legal practitioner registered in terms of the Legal Practitioners Act [Chapter 27:07]; or

an official or employee of a registered trade union or employers organisation of which the party is a member.”

I did not hear Applicant say he was not a member of a Union.

On the 14th September 2011 Applicant through his Legal Practitioner, filed Heads of Arguments. In paragraph 6.1. thereof Applicant averred that he filed this application on the 26th January 2012, i.e. a delay of 49 days. Respondent filed and served its Heads of Arguments on the 2nd October 2011. In paragraph 8 thereof Respondent pointed out that the date of filing of the application was 26th June and not January i.e. 7 months delay.

Before this Court, Applicant conceded that the delay was 7 months and not 49 days as the application was filed in June. The concession was properly made.

However in paragraph 6.7 Applicant requested the Court to reward him by granting the application for   he was able to look for money to hire legal services within less than a month of getting the adverse judgment. (Underlining my own)

The question then is why did his Legal Practitioner wait until June to file this application? It was only after Respondent’s Legal Practitioner had pointed this out, that Applicant’s Legal Practitioner in reply submitted from the bar that Applicant got the money in June i.e. after 7 months. This shifting of goal posts is totally unacceptable. In that regard, I find that there is no reasonable explanation for the 7 months delay. This is a total flagrant breach of this Court’s Rules. The adage, the law does not help those that slumber is apt. See:-

NDEBELE V NCUBE 1992 (1) ZLR 288 at page 290 E.

The Courts have times without number impressed on the principle that there must be finality to litigation. This is one such case in which this principle aptly applies.

See:- ARAB V ARAB 1976 (2) ZLR 166

In which it was held that it is a fundamental principle, dictated by public policy, that as far as possible there should be finality to litigation.

In the NDEBELE V NCUBE case supra at page 290 paragraph C – D McNally J.A. (as he then was) did not mince his words when he was dealing with an application for rescission. He stated;

“It is the policy of the law that there should be finality to litigation. On the other hand one does not want to do injustice to litigants. But it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time and for other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers.

We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute”.

Having considered the first two issues vis the length of the delay and the explanation for the delay, I find that the Applicant has failed to pass the first 2 hurdles and to that end I find it unnecessary to consider the 3rd issue – prospects of success.

While I am not saying that there are good prospects of success on appeal I reiterate the principle stated by Sandura J.A. (as he then was) in the case of :

FORWARD KODZWA V SECRETARY FOR HEALTH AND ANOTHER supra at page 315 (F – G)

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation it is not necessarily decisive. This in the case of flagrant breach of the rules particularly where there is no acceptable explanation for it the indulgence of condonation may be refused, whatever the merits of the appeal may be”.

Accordingly I will dismiss the application.

It is therefore ordered that the application for late filing of application for leave to appeal to the Supreme Court be and is hereby dismissed with costs.

Matsikidze and Mucheche – Applicant’s Legal Practitioner

Honey and Blanckenberg – Respondent’s Legal Practitioner