Lloyd Machacha v Health Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/166/25
HARARE, 11 FEBRUARY, 2025 AND
22 APRIL 2025
CASE NO LC/H/1258/24
LLOYD MACHACHA
APPLICANT
HEALTH SERVICE COMMISSION
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/166/25

HARARE, 11 FEBRUARY, 2025 AND
22 APRIL 2025

CASE NO LC/H/1258/24

LLOYD MACHACHA

APPLICANT

HEALTH SERVICE COMMISSION

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant - L. Machacha, (Applicant)
For Respondent - C Chitekuteku, (Barred)

MUSARIRI J,

Applicant applied to this Court for condonation of a belated application to appeal this Court’s judgment LC/H/349/24 to the Supreme Court. Respondent opposed the application but was barred for failure to file its heads of argument.

Initially Applicant applied to the Court for the review of his demotion by Respondent. The matter is pending under reference LC/H/1067/24. On the 7th March 2024 the Court issued a judgment LC/H/93/24 which dismissed applicant’s points in limine. On 23rd April 2024 applicant applied for leave to appeal to the Supreme Court. Respondent opposed the application. This Court dismissed the application by judgment LC/H/349/24 dated 29 August 2024 on the basis that the application was filed out of time. Applicant then filed the present application for condonation.


Applicant’s case

The pertinent parts of applicant’s founding affidavit stated that,

“5. This is an application for condonation which is brought in terms of Rule 22 of the Labour Court Rules, 2017.

10. The judgment in question was issued on the 7th of March 2024 and the Applicant only got to know of the judgment on the 19th March 2024 when he arrived at Court for hearing. Apart from knowing the judgment late, the Applicant had system challenges to regularly check the system. The Applicant’s problems were further worsened by that his legal practitioners renounced agency at the material time when they were supposed to file for leave to appeal.

11. Counting from the 7th of March 2024, the 21 days within which to appeal lapsed on the 9th April 2024. The Applicant delayed with 8 days and filed his application for leave on the 23rd of April 2024… If one counts from the 19th of March 2024 when the Applicant got to know of the judgment, one could see that the Application for leave was filed in time.

12. After filing the application for leave to appeal, the matter was heard on the 21st of May 2024 and only for the judgment striking of the matter to be release (sic) on the 29th of August 2024.

16. Coming to the prospects of success, I believe my appeal enjoys good prospects of success. It is common cause that this court issued two conflicting decisions on the same point founded on the same facts and evidence. It is in the interests of justice for the Supreme Court to define the correct position of the law the point (sic).”

Respondent’s case

Respondent’s opposing affidavit countered thus,

“12. It is denied that applicant delayed by 8 days. The applicant was aware of the judgment in question on 7 March 2024. The delay is 10 months. The Applicant has alleged that the delay was due to circumstances beyond his control without specifying. There is therefore no explanation for delay.

13. The application lacks merit. The Applicant does not raise any point of law. The Applicant has repeated the same grounds that were dismissed by the Supreme Court under case number (SC 610/24).

14. The interests of justice require that this matter to be dismissed. There is no explanation for the delay. The applicant has raised petty and frivolous arguments and the interest of justice demands that this application be dismissed with costs.”


Analysis

This Court is persuaded by respondent’s submissions. The delay sought to be condoned is 10 months as averred by respondent not the 8 days applicant mentioned. The explanation for the delay is vague and unsatisfactory. The prospects of success are not set out in applicant’s founding affidavit besides the reference “See Annexure 6- Draft Application Leave to Appeal and Draft Notice of Appeal. Such reference is inadequate as pointed in the case of,

Lunat v Patel SC142/21

Per Mathonsi JA at P7

“The passages in the founding affidavit I have reproduced above do not even begin to show the prospects of success. It is not enough for the applicant to refer to the grounds of appeal and expect the court to extrapolate what the prospects of success are. The founding affidavit presents the applicant with an opportunity to set out his case. I cannot piece it together for him … unsubstantiated averment that prospects of success exist is not sufficient.”

Further and in any event the Rule 22 in terms of which the ‘application’ was made, does not apply. That Rule provides condonation for belated appeals to or reviews by the Labour Court. It does not provide condonation for a belated application for leave to appeal to the Supreme Court.


Wherefore it is ordered that,

1. The application for condonation be and is hereby dismissed; and

2. Each party shall bear its own costs.

G.MUSARIRI
J-U-D-G-E
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