Martin Muonde v Safeguard Security

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/246/2013
HELD IN HARARE, MAY 21, 2013
CASE NO. LC/CON/H/177/2011
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/246/2013

HELD IN HARARE, MAY 21, 2013			CASE NO. LC/CON/H/177/2011

In the Matter Between

MARTIN MUONDE					APPLICANT

And

SAFEGUARD SECURITY			       	RESPONDENT

Before The Honourable E. Makamure         : President

For The Applicant     		: Mr A. Masango (Legal Practitioner)

For The Respondent  		: Mr C. Nyemudzwa (Human Resources Manager)

MAKAMURE E.,

This is an application for condonation of late noting of an appeal.  It is trite that in order for the application to succeed, the following factors are considered:

Whether the extent of delay in noting the appeal is in ordinate considering the circumstances of the case.

Whether there is a reasonable explanation for the delay.

The prospects of success should the matter be heard on the merits.

[See Chubb Union Zimbabwe v Chubb Union Workers SC 1/2001].  In the present matter it is common cause that the applicant was dismissed from the respondent’s employ on 18 June 2009.  This was after disciplinary proceedings had been conducted for ‘desertion of post’ in violation of the applicable code had been conducted against him.  His appeals to the relevant National Employment Council (NEC) failed.  The determination of the appeal by the Negotiating Committee was handed down on 10 May 2011 (the Local Joint Committee handed down its decision on 16 June 2010).  Applicant noted his application with this Court on 1st November 2011.  This was outside the fourteen day period set by the relevant NEC.  This was also more than twenty one days required by the Rules of this Court.

The applicant has not proffered a reasonable explanation as to why he delayed.

There is a doctor’s letter on record which shows that the appellant fell ill on 12 May 2011 and was placed on long term treatment.  This letter is meant to explain why the applicant approached the Court as late as November 2011.  The doctor’s letter was written on 14 July 2012.  There is no proof of the visits made regularly to the doctor between May 2011 and October 2011.  The doctor’s letter therefore still does not explain the reason for the delay.  Had there been proof on a balance of probabilities that while the applicant was able to make regular visits to the doctor the applicant made it known to this Court that he intended to appeal the decision and that it was then not possible due to ill health, one would have understood the applicant’s predicament.  In the absence of a reasonable explanation for the delay, the Court’s hands are tied.

The appellant was dismissed for desertion from his post when he was supposed to be conducting guard duties.  This appears to be common cause.  There does not seem to be any reasonable arguable explanation for the desertion.  The prospects of success on the merits are slim.  It is therefore clear in my view that the applicant has failed to discharge the onus required of him.

In view of the foregoing I find that there is no merit in the application.

Accordingly, it is ordered that the application be and is hereby dismissed.  No order as to costs.

Nyikadzino & Simango Legal Practitioners, Representing the Applicant.

Human Resources Manager, Representing the Respondent.