Muchineripi Zimbovora v The Auditor-General

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/233/25
HARARE 17TH OCTOBER, 2024
CASE NO LC/H/952/24
AND 30TH JUNE, 2025
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/233/25 HARARE 17TH OCTOBER, 2024	CASE NO LC/H/952/24

AND 30TH JUNE, 2025

In the matter between: -

MUCHINERIPI ZIMBOVORA	APPLICANT

And

THE AUDITOR-GENERAL	RESPONDENT

Before the Honourable Chivizhe J For Applicant: In person

For Respondent: Mr. V. N. Mukumbe (Legal Practitioner) CHIVIZHE, J:

The delay in the hand down of this judgement is sincerely regretted.

This is a conjoined application for condonation and extension of time for late filing of an application for leave to appeal in terms of Rule 22 of the Labour Court Rules, 2017 and an application for leave to appeal in terms of the Labour Court Rules. The application is opposed.

FACTS

The applicant is a former employee of the respondent. He was employed as a senior auditor from June 2008. On 18th October 2018, the applicant was dismissed from employment after having been found guilty on charges of misconduct in terms of the Public Service Regulations Statutory Instrument 1 of 2000. The applicant then filed an application for review of the determination and penalty to the respondent on the basis that there had been procedural irregularities that had blighted the disciplinary proceedings against him. The review could not

be dealt with because there was no Audit Office Board in existence at the meeting. The respondent duly communicated this with the applicant.

The applicant then approached this court for redress. The applicant filed an appeal under reference Labour Court/H/189/19 which appeal was dismissed. The Applicant thereafter appealed to the Supreme Court under reference SC390/22, his dismissal from employment was confirmed by that court. Undettered the Applicant again approached this court with an application under reference Labour Court/H/315/24 for an order ‘compelling the respondent to comply with the provisions of section 51 (2) of the Public Service Regulations, 2000’. The applicant stated that his right to an internal review remedy had been infringed upon by the respondent. The Respondent having taken a preliminary point that the matter was res judicata the court found the point to be merited it upheld the point and the application was dismissed. The applicant then lodged an application for leave to appeal to the Supreme CourT under reference Labour Court/H/552/24. The application was struck off the roll for non-compliance with the rules of this court..

The applicant having delayed in lodging a fresh application for leave to appeal to the Supreme Court filed the present application.

SUBMISSIONS OF THE PARTIES

The applicant contends that the delay was due to the fact that he had made a defective application. The Registrar had informed him of the defective affidavit on 28 May 2024. The applicant further argued that he failed to meet the deadline due to the fact he had been trying to communicate with the Registrar via the IECMS platform. His explanation is therefore reasonable. The applicant further contends that the delay itself is not inordinate being a period of approximately three months. On the issue of prospects of success Applicant contends that he has good prospects as he believes this court arrived at an irrational decision in the main application under ref Labour Court/H/315/24 as there was no evaluation of the complete record, the court also did not consider the point in limine taken by him. The Applicant also contends the court erred in conducting a physical hearing instead of a virtual hearing.

Per contra, the respondent argued that the applicant had failed to meet the requirements for an application for condonation. The period of delay was inordinate considering the circumstances of this case. The applicant had ample time to file a fresh application after his application was struck off on 22 July 2024. There was no reasonable explanation for the delay. The applicant

in any event was proffering two different explanations before the court. He was not being candid and honest with the court. The respondent also argued that the applicant had no prospects of success in the main matter as he had failed to attach the draft notice of appeal to enable the court to assess his prospects. A perusal of the judgement sought to be attacked showed that there was no preliminary point taken as such, the court in arriving at its decision did consider the whole record of proceedings. The court had also properly upheld the point in limine on res judicata as it was clear from the record that the matter had been heard to finality. There was also no rule that prevented the court from having a physical hearing. Lastly the Respondent asked the court to, in dismissing this application to invoke its sentiments in the judgement under reference LC/H/203/24 by imposing higher costs. This was in view of Applicant continuously dragging respondent to court with defective applications, his failure to take heed of wise counsel even when it is tendered to him. He was also effectively abusing the court and the respondent in the process.

ISSUES FOR DETERMINATION

In the present matter, the following issues arise for determination:

Whether or not the delay was inordinate?

Whether or not there is a reasonable explanation for delay?

Whether or not there are prospects of success in the main matter?

APPLICATION OF THE LAW TO THE FACTS

Whether or not the delay was inordinate?

The applicant argued that his delay was inordinate because his period of delay was only three months. The requirements for an application for condonation were set out in the case of Zimslate Quartzite (Pvt) Ltd & Ors v Central African Building Society SC 34/17 where it was stated as follows:

“An applicant, who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgences, including that of

condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

The period of delay by the applicant is inordinate in view of the circumstances of this case. It is apparent that the Applicant having filed a defective application under Labour Court/H/552/24 was advised firstly by the Registrar and then by the Respondent in filing its opposition. The Applicant in total disregard of this advice proceeded headlong with the defective application which was then struck off by the court. Needless to point out the Applicant is indeed the author of his problems. The delay by the applicant is inordinate. However, there are other factors that this court is enjoined to considered in an application for condonation.

Whether or not there is a reasonable explanation for the delay?

The applicant submitted that his reason for the delay was due to the fact that he had failed to lodge a correct application as cited by the rules and thus he seeks condonation for the late filing of a correct application for leave to appeal. In the case of Lunat v Patel SC 47/22 at p 6, CHATUKUTA JA held that:

“A party seeking condonation and extension of time must satisfy the court that a valid and justifiable reason exists as to why compliance did not occur and why noncompliance should be condoned. Further, regardless of the prospects of success, a court may decline to grant condonation where it considers the explanation for failure to comply with the rules unacceptable.”

The applicant gave his explanation for delay as being that when his former application was struck off the roll, he was already out of time to lodge a correct application for leave to appeal. The explanation by the applicant is unreasonable as it does not justify as to why he had to wait for a period of three months to lodge the correct application for leave to appeal.

The applicant as contended by the respondent is also not been candid with the court as to why he delayed with his application for condonation. The applicant initially stated that his delay was due to the fact that he had filed a defective application but later he stated that his delay was due to the fact that he had challenges with the IECMS.

The court in the case of Friendship v Cargo Carriers Limited and Anor SC 1/13 held as follows:

“Condonation is an indulgence which may be granted at the discretion of the court. It is not a right obtainable on demand. The applicant must satisfy the court that there are compelling circumstances which would justify a finding in his favour. To that end,, it is imperative that an applicant for condonation should be candid and honest with the court.”

The applicant has failed to be candid with the court, he has failed to satisfy the above test. The different explanations proffered have left the court in a state of confusion as it is not quite clear as to what exactly transpired that made the applicant fail to meet the timelines in the rules of the court.

The court also has to consider whether or not the applicant has prospects of success on the main matter.

Whether or not there are prospects of success?

The court gave a detailed definition of prospects of success in the case of Essop v S, [2016] ZASCA 114 where the court held as follows:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

The applicant contends that he has prospects of success because the judgment of this court was irrational on the basis that it was based on the absence of the evaluation of a complete record of the matter. The applicant also argued that he has prospects of success based on the fact that the court had omitted his preliminary point in its judgment. The Applicant having failed to attach the draft notice of appeal this court is constrained to assess the prospects of success on his intended grounds of appeal. The application for condonation ought to fail simply on that basis.

It is however also apparent that the applicant still enjoys no prospects of success as the matter he seeks to appeal against has already been declared res judicata by this court. In the case of Zhanje v Gambe and Anor HH 381/24 it was held as follows:

“The defence of res judicata is successfully raised where a matter that has already been determined in prior proceedings is brought again. The parties are barred from relitigating the same issue in a lawsuit. Such a matter cannot be re-opened by the same parties on the basis of the same causes of action. The plea of res judicata promotes the principle of finality in litigation and curtails endless litigation. The following requirements must be met:

the parties must be the same as in the prior matter.

the cause of action must be the same.

the prior case must have been decided on the merits.”

A perusal of the record shows that the Applicant has appeared in this court several times, he has also been to the Supreme Court and back. He has been unsuccessful in all the matters. This court has already found the matter to be res judicata. It is therefore precluded from re-opening the case which has been heard to finality. The applicant clearly therefore has no prospects of success.

DISPOSITION

The application for condonation for late filing of an application for leave to appeal and application for leave, being without merit, it be and is hereby dismissed.

There will be no order as to costs.