Joseph T Vhenge v Traffic Safety Council of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/24/2020
HARARE, 22 OCTOBER 2019
CASE NO. LC/H/24/2020
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/24/2020

HARARE, 22 OCTOBER 2019		            CASE NO. LC/H/APP/273/19

AND 31 JANUARY 2020

In the matter between:-

JOSEPH T VHENGE						Applicant

And

TRAFFIC SAFETY COUNCIL OF ZIMBABWE		Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr G. Gumbiro (ZFTU Officiual)

For Respondent		Mr G. Chingoma (Legal Practitioner)

CHIDZIVA, J:

This is an application for condonation for late noting of an appeal and an application for rescission. In his draft order the applicant has prayed for condonation only. I will therefore deal with an application for condonation.

The brief facts of the matter are that,

The applicant was dismissed from employment on 3 December 2013.

The applicant then filed this application on 17 April 2019.

In cases of this nature certain facts have to be considered. In the case of Friendship vs Cargo Carriers Limited & Another SC 1/13 it was held that,

“Certain criteria have been laid for consideration by a court/judge in order to assist it in the exercise of its discretion. Among these are, the extent of the delay and the reasonableness of the explanation therefore, the prospects of success on appeal, the interest of the court in the finality of judgment and the prejudice to the party who is unable to execute his judgment …”

The Extent of the delay and reasonableness of the Explanation

The applicant has submitted that the delay is excusable as it was due to illness. It was his evidence that from the 5th of December 2013 he succumbed to celebral malaria and he was going to hospital from the 8th, 12th, 19th, to 22nd December 2013. The applicant submitted medical reports on page 25 and 26 to prove this.

In December 2014 applicant appeared before a labour officer who indicated that he had no jurisdiction over the matter. This is when he approached the Labour Court. Applicant also submitted that the other reason for the delay is that he was failing to raise Sheriff fees after settling the medical bills. He was also diagnosed with insanity and he was eventually referred to traditional healers.  The medical report on page 22 shows that he received treatment from 5 November 2017 to 12 October 2018.

It is my view from the foregoing that the applicant gave a reasonable explanation for the delay by availing medical reports covering the period 2013 to 2018.

Prospects of Success

In the case of NMZ Holdings Ltd vs The Liquidator of Continental Securities Trading (Pvt) Limited SC 8/09 it was held that in dealing with an application for condonation.

“It is a requirement in our law that the affidavit should deal with this aspect of the application that is, the prospects of success.”

In Annexure “A” attached to his founding affidavit the applicant has argued that he has prospects of success on appeal in that,

The Disciplinary hearing committee had no jurisdiction over the matter according to Section F (3.4) and F (2) of the Traffic Safety Council of Zimbabwe Code of Conduct. He submitted that the Code states that where the offence necessitates a verbal or written warning the hearing shall be conducted by the immediate Supervisor not the Committee as is the case here.

Dismissal was supposed to be on the 2nd count not the first count.  This case does not call for dismissal on the first count.  The offence necessitated a written warning not dismissal or a penalty.

There was gross misdirection by the Disciplinary Committee as it did not follow the Code of Conduct when it based its decisions on contributing factors.

The Respondent in response argued that applicant did not address the prospects of success in the founding affidavit.  Respondent further stated that the applicant had left the court to guess the prospects of success on his application should feel.

The Applicant addressed the issue of prospects of success in Annexure A of his founding affidavit. The applicant pointed out at the gross-misdirection in the hearing in that the Code of Conduct was not adhered to.

The Respondent in its heads of argument submitted that the right to appeal had also prescribed. It was further argued that the right to appeal qualifies as a “debt” under the Prescription Act. Mr Chingoma in his submissions indicated that he was not going to deal with the issue of prescription as a point in limine but would deal with it through the issue of prospects of success.

I have already found that the applicant gave a reasonable explanation for the delay. The applicant also acquitted himself well in explaining the prospects of success on appeal.

In the circumstances I find that the application being merited I order as follows,

The application for condonation of late filing of appeal be and is hereby granted.

The Respondent shall bear costs.

Dube, Manikai & Hwacha, respondent’s legal practitioners