Makiel Pikire v Rainbow Towers Group

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/704/16
HELD AT HARARE 26 SEPTEMBER 2016
CASE NO
JUDGMENT NO LC/H/704/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/704/16

HELD AT HARARE 26 SEPTEMBER 2016		CASE NO LC/H/APP/601/16

& 4 NOVEMBER 2016

In the matter between:

MAKIEL PIKIRE				Applicant

And

RAINBOW TOWERS GROUP		Respondent

Before The Honourable Muchawa, J

Applicant			In person

For Respondent		W K Chirongoma (Legal Practitioner)

MUCHAWA J:

This is an application for condonation of late noting of an application for review.

The applicant is a former employee of the respondent.  He was employed as a quantity surveyor in March 2011 until his suspension in September 2013 on allegations of having acted in an inconsistent manner by attempting to solicit a bribe and attempting to falsify delivery of certain goods.  A disciplinary hearing was held and he was found guilty and dismissed.

Apparently the applicant then lodged a complaint alleging that his salaries had been underpaid from July 2011 to date of dismissal, whether he was owed leave pay and any outstanding allowances, including an acting allowance.  A further term of reference was to establish whether the applicant had been served with the determination of the disciplinary hearing.

The arbitrator whilst making certain observations concluded by finding against the applicant.

In the application before me, the applicant seeks to be condoned for the late filing of an application for review.

The broad principles to be considered by a court in determining whether to condone the late noting of an appeal, or in casu,  an application for review, are set out in Jensen v Acavalos 1993 (1) ZLR 216 (SC) .  They are; the extent of the delay, the reasonabless of the explanation proferred for the delay and the prospects of success on appeal.

Below, I turn to apply the law to the facts of this matter.

Extent of delay

The applicant who filed this current application on 16 June 2016, states that his application came after a period in excess of a year had lapsed.

Rule 16 (1) of the Labour Court Rules states that a person wishing to seek review of proceedings shall do so within twenty one days from the date of the conclusion of the proceedings.  Needless to say, the delay in this case is inordinate.

Explanation for the delay

The applicant explains in his founding affidavit that the decision of the respondents was not communicated to him and he only collected it in May 2016 after seeking legal advice.

In submissions before me, the applicant however conceded that by 2014 he had received the arbitral award which appears to be the decision he wishes to have brought on review as evident from the draft notice of review.

The respondent’s counsel also points to a letter dated 14 October 2014 between the parties which made reference to the arbitral award in question and which reflects the applicant received that letter and signed in acknowledgement.

The applicant also tendered his wife’s death certificate which shows she died on  10 August 2015.  He also explained that he was thereafter financially crippled as he has three school going children.

As unfortunate as the applicant’s wife’s death is and the resultant increased financial obligations, I find that the explanation tendered for the delay is not reasonable.

It is trite that an application stands or falls on its founding affidavit.  In this case applicant’s explanation in the face of the concession made is an insult to the intelligence of the court.  He has not been truthful with the court.    His delay in filing the application for review was not as a result of not having received the arbitral award in question nor the determination of the disciplinary hearing.  The arbitrator actually made a factual finding that an annex E showed that the determination of the disciplinary hearing was hand delivered to applicant through his lawyers on 8 October 2013.

Prospects of success

The applicant claims that he has noticed from the papers attached that the procedure done was not proper.

The proposed grounds of review are;

that the arbitrator ignored the shifting of job titles …

that the arbitrator did not consider other documents proving that its not the purported crime that applicant was dismissed for but certain documents prove that Rainbow Towers Group had the intention to dismiss applicant even before he was finally dismissed.

I have to agree with the respondent that the applicant has no prospects of

success in the application for review.  This is because he is questioning the conclusions on the facts and law rather than the propriety of the procedure employed.

In any event, the second ground of review raised is totally divorced from the terms of reference of the arbitrator.  He was not tasked to consider whether or not the dismissal was lawful or fair.

Accordingly the extent of the delay is inordinate, the explanation for it is unreasonable and there are no prospects of success on the merits.

The application for condonation being without merit, be and is hereby dismissed.

Kuhuni Attorneys, respondent’s legal practitioners