Malta P. Katembende v City of Harare

IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO.LC/H/98/2013
HELD AT HARARE ON 22 MARCH, 2013      CASE NO. LC/CON/ H/147/2012

In the matter between




MALTA .P. KATEMBENDE                                   APPLICANT

And

CITY OF HARARE                                                  RESPONDENT



Before The Honourable L Kudya, President

For Applicant      : Mr L.Seremani (Legal Officer)

For Respondent      : Ms A. Zvoutete (Principal Legal Officer)



KUDYA, L



      Applicant made a chamber application to this court on 9 January 2013

seeking this court to condone her late filing of an appeal against the

decision of the Respondent Council. The Respondent dismissed her on

allegations of theft and absence from work without leave.



      After going through the papers pertaining to this application in

particular, the founding affidavit and the respondent’s notice of response,

the court observed that the Applicant had baldly averred that she had

prospects of success on appeal on the matter .The court instructed the

Applicant to purge the defect before the matter could be set down on the

ordinary   roll   for   argument.   The   applicant   ignored    the   court’s

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recommendation ,retained her application in its defective form and went

ahead to file heads of argument for use on the date of hearing.


                                             JUDGMENT NO.LC/H/98/2013



      When the matter came up for hearing on the set down date, the court

asked the Applicant about the defect which it had asked her to regularize. All

that her Counsel could advise the court was that defect had not been

regularized but that Applicant was going to rely on her heads of argument

filed of record.



       It was also observed that the Applicant’s heads had only been served

on the Respondent just before the hearing. The matter was stood down to

allow the Respondent to peruse the Applicant’s heads and ascertain whether

there were any arisings which in the normal course of things should have

been addressed by an answering affidavit. For expediency the court allowed

the Respondent to answer orally. When the matter resumed, the parties

made submissions which are on record on the variety of factors that needed

to be considered in this case.



      The brief history of the case is that: after the Applicant had been

dismissed from work on theft and absenteeism allegations, she sought to

get the record of proceedings of the hearing which found her guilty and

resulted in her dismissal from work. All efforts were in vain until the court

intervened through an application which had been made by the Applicant to

have the Court compel the Respondent to release the record in question.


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      Applicant submits that she discovered that due to the delay in

obtaining the record she was out of time to file her appeal hence this

application for condonation.



      The factors to be considered in condonation applications are aptly set

out in the case of Jenson vs Cavalos 19931) ZLR 216(S) and that of

T.Mazvimbakupa vs City of Harare HH 92/05




                                                        JUDGMENT NO.LC/H/98/2013



These are couched in the following words:
      “In determining whether or not, in a given case good cause for condonation has been
      shown, the following factors must be considered
      a. degree of non-compliance with the rules
      b.the explanation thereof
      c. the prospects of success on the merits
      d. the importance of the case
      e. the degree of prejudice to the respondent
      f. the convenience to the court, and
      g.the avoidance of unnecessary delay”



      Before the above factors are addressed in the context of the facts of

this case it is important         to consider first critical point which was raised by

the Respondent. This is the same point which the court also addressed in its

instruction to the Registrar when the matter first came before it in

chambers. This is the issue about the founding affidavit in this matter.


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      The law in relation to the critical role played by this document in

applications was spelt out in the case of Milrite Farming Pvt Ltd vs.

Porusingazi and others HH 958/10 where Hlatshwayo J stated the following

in a chamber application which was before him



       “the basic rule pertaining to application procedures is that the applicant’s case stands
      or falls on averments      made in the founding affidavit         and not upon subsequent
      pleadings . The rationale for the rule is quite clear. It is to avoid the undesirable effect of
      litigation assuming a snowballing character with fresh allegations being made at every
      turn of the pleadings”



                                                         JUDGMENT NO.LC/H/98/2013

       Stemming from the above legal principle, it is important to note that

the Applicant’s application in the instant case failed to satisfy the above legal

requirements in particular, as regards the prospect of success .The

Applicant’s founding affidavit only addressed the issue                    of what action she

took to obtain the record of proceedings of the Disciplinary Committee. She

then baldy averred that she had prospects of success on appeal


The last paragraph of her founding affidavit reads:
      “as a matter of emphasis, the applicant has good prospects of success on appeal and the
      explanation for the delay is reasonable in the circumstances”



      Having made this bald assertion the applicant then went on in her

heads of argument to detail her prospects of success. She also tried to show

the court that she could satisfy all the factors required for a condonation

application to succeed. Such an approach is the “snowballing effect” which the

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judge in the Porusingazi case (Supra) said was undesirable. The court should

register its displeasure by denying relief to a party who relies on such a

defective founding affidavit.m



      As correctly observed by the Respondent, there was nothing before

the court on the founding affidavit which could satisfy the court that indeed

the Applicant had prospects of success. All the submissions made in the

heads and orally could not take the applicant’s matter any further as that

could not cure the fatal defect in the affidavit. This was worsened by the fact

that earlier on the court had brought it to the applicant’s attention that the

founding affidavit was lacking in that respect but she chose not to regularize

the position.



      The Applicant’s defective founding affidavit means     that such failure

to stick to the law in that respect is          fatal to the application for

condonation. For
                                              JUDGMENT NO.LC/H/98/2013



completeness of record, it is worth addressing some of the factors to be

considered in such applications which were properly addressed by the

founding affidavit.


Applicant submitted and elaborated in her heads that the delay was indeed

long but at the instance of the Respondent who delayed in letting her have

the record of proceedings. She submitted documentary evidence to the




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effect that the delay was caused by Respondent who did not release her

record on time



      On the other hand the Respondent argued that the delay was of her

own making since she had not done anything about the case only to come

up some five years later to pursue her rights. The documentary evidence

showing that Applicant had engaged Respondent about the record from the

onset was not controverted by the Respondent. It is clear that at least on

this ground the explanation for the delay could be excusable.



      This is the ground which was fatal to the Applicant’s case. It deserves

no further discussion as it has already been addressed when the issue of

founding affidavits was discussed above.



      The      remaining   three   grounds   of:   prejudice   to   respondent,

convenience of the court and the avoidance of unnecessary delay grounds

were not raised in the founding affidavit hence submissions made in the

heads or in the oral submissions       could not     cure the       defect.



      In the result, it is clear that the application for condonation failed to

satisfy the tests laid down for its success. The application was fatally

defective at


                                              JUDGMENT NO.LC/H/98/2013




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the outset for want of setting out clear prospects of success. All efforts to

have it cured proved in vain. It should therefore fail.



It is therefore ordered as follows:



The application for condonation of late noting of an appeal being without

merit be and is hereby dismisses with costs.




L. Kudya

President: Labour Court




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