Maxwell T. Chizunguzu v National Railways of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/289/2016
HARARE, 25 DECEMBER 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/289/2016

HARARE, 25 DECEMBER 2015			    CASE NO. LC/H/APP/910/14

AND 13 MAY 2016

In the matter between:-

MAXWELL T. CHIZUNGUZU					Applicant

And

NATIONAL RAILWAYS OF ZIMBABWE			Respondent

Before Honourable L. Hove, Judge

For Applicant	Mr S. Kachere (Legal Practitioner)

For Respondent	Mr C. Kwaramba (Legal Practitioner)

HOVE, J:

On 9 December 2015 I made an order dismissing an application for condonation.  On the basis that I did not find that the explanation given for the delay was reasonable and further that the applicant’s prospects of success on appeal were NOT good ones.

I also denied the application to amend the grounds of appeal which were themselves improperly before the court.

The applicant was aggrieved and advised the registrar that their client sought to appeal against my order and as such they required me to prepare my reasons for judgment.  These are they:

In considering an application oF this nature, the court must consider the reasonableness of the explanation given for the delay and also the applicant’s prospects of success on the merits of the matter.  See in this regard the case of United Plant Hire (Pvt) Ltd vs Hills and Others 1976 (1) SA 717 where it was stated that;

“It is well settled that, in considering applications for condonation the court has discretion to be exercised judiciously upon a consideration of all the facts; and that in essence it is a question of fairness to both sides.  In this enquiry relevant considerations may include the degree of non compliance with the rules, the explanation thereof, the prospects of success ….”

This position has been accepted by our courts see Bishi v Secretary for Education 1989 (2) ZLR 240 (HC) Forestry Commission v Moyo 1997 (1) ZLR 254 (S).

The reason given for the inordinate delay is that the applicant was a self actor and he was not aware of the need to act timeously.  This reason the court finds unreasonable.  When one decides to act in person, he makes himself or herself aware of the basic rules of the procedure he intends to pursue. Failing to know the basics and still proceeding to act in a personal capacity is fool hardy.  The applicant could have sought the services of a legal practitioner or the services of an trade union member to assist him if money to engage a legal practitioner was unavailable. Ignorance of the law is not a defence and can therefore not in itself constitute a reasonable explanation for failing to act within the prescribed times.

Further, even if the court were to accept that his ignorance of the law constituted a good reason for the delay, that reason would not suffice the moment he became represented, first by a trade union member and later by a firm of legal practitioners. No application for condonation was made forthwith.  The delay from the moment he became represented is not explained.  Worth noting is the fact that the applicant seems not to accept that he is late in filing his appeal.  This, in my opinion, is the real reason why he is not able to given an explanation for the delay.  He believes that he is not in breach of the rules.  The application placed before the court is therefore not bona fide.

The length of the delay is inordinate.  The decision being sought to be appealed against was availed to him on 6 November 2008.  He sought to be condoned in November 2014 when he ought to have filed his appeal within 14 days.  This clearly is an inordinate delay which has not been fully explained.  The initial stage of the delay is sought to be explained by the fact that he was unrepresented but no explanation as to why he failed to seek condonation as soon as he availed himself the services of a representative. From about January 2010 the respondent advised the appellant that the appeal was out of time but the appellant failed to take steps to regularize this failure to comply until November 2014.  No explanation is given for failing to apply for condonation after 29 March 2014 when the notice of response pointed out the fact that the appeal was late.  The application was filed several months later in November 2014.  In casu, not only was the application for condonation late, there was also a delay in seeking condonation.

In the case of Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 the court stated that:

“If he does not seek condonation as soon as possible he should give an acceptable explanation not only for the delay in making the application for rescission of the default judgment, but also for the delay in seeking condonation.  As Steyn CJ said in Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138H:

‘what calls for some acceptable explanation is not only the delay in noting an appeal and in lodging the record timeously, but also the delay in seeking condonation.’

There are therefore two huddles to overcome.”

In casu the applicant goes nowhere near meeting the above outlined requirements.  He contends himself to give a bold ‘I was not legally represented’ explanation without explaining why when he became represented and when he was made aware by the other side that the appeal was out of time, he did not act timeously to regularize the situation.

As regards the prospects of success, the law says where there is no reasonable explanation or where there is no explanation for some periods, the court can dismiss that application and not indulge the applicant whatever his prospects of success.

Further it is an accepted principle of our law that the law will help the vigilant and not the sluggard.  There must be finality to litigation.

Ndebele v Ncube 1992 (1) ZLR 288 forward Kodzwa v Secretary for Health SC 50/99.

In casu however, the court considered the merits of the defence.  The respondent submitted that the case involved the theft of a trench court that went missing and was found in applicant’s house after a search.  He also had pleaded for forgiveness from his workmate.

In response the applicant’s legal practitioner stated that;

“If my client’s case is such a hopeless case, why are they afraid to have the applicant have his day in court.”

This does not show in any way that the prospects of success are reasonable or good.  The stolen trench coat was found after a search on the applicant and that the applicant apologized.

The use of an unregistered code is an irregularity that must be shown to have caused prejudice in order for the proceedings to be vitiated.  It does not entitle the applicant to succeed but that the irregularity must be put right by the court hearing the merits of the matter itself or by remitting.

See the case of Dalyn Mine v Musa Banda SC 39/99.

I was of the considered view that the applicant’s explanation was unreasonable and further that his case on the merits was a hopeless one.

Further I was of the view that filling an appeal out of time before one sought and obtained condonation is a legal nullity.  The appeal would be improperly before the court, a legal nullity.  One had to first seek and obtain condonation, if condonation had been granted, them the applicant could have properly filed his appeal.  What was filed before the court prior to this application is a legal nullity which cannot be amended.

It was for the above reasons that I refused to exercise my discretion in favour of the applicant and I dismissed his application.

Messrs Kachere & Guwuriro, applicant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners