Naison Makwanya v Tel One (Pvt) Ltd

### Preamble
1
IN THE LABOUR COURT OF
JUDGMENT NO LC/H/145/24
ZIMBABWE HELD AT HARARE 9TH
CASE NO LC/H/995/23
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 9TH FEBRUARY 2024 & 4 APRIL 2024

In the matter between

JUDGMENT NO LC/H/145/24

CASE NO LC/H/995/23

NAISON MAKWANYA	APPLICANT

And

TEL ONE (PVT) LTD	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE, JUDGE

FOR THE APPLICANT : MR .N. SEREMANI (LEGAL PRACTITIONER) FOR THE RESPONDENT: MS N. KATSANDE (LEGAL PRACTITIONER)

With her Mr D. PENETI

MAKAMURE J:

On the 9th of February 2024 an order was made striking the applicant’s application for condonation for late filing an application for review, off the roll . Parties have now requested for reasons. The reasons appear below.

This is an application for condonation for late filing an application for review. It is opposed.

It is trite that in an application of this nature the applicant must meet requirements which include the following:

That the delay was not inordinate , regard being had to the circumstances of the case;

That there is a reasonable explanation for the delay;

That there are prospects of success on the merits should the application be granted;

The possible prejudice to the other party.

STEPHEN KUTIWA v ZIMPOST SC85/05.

The list is not exhaustive. See also Kombayi v Berkhout 1988(1)ZLR 53 (S); Florence Chimunda v Arnold Zimuto & Another SC76/14.

The Rules of this Court Statutory Instrument 150 of 2017 provide as follows with respect to applications for condonation.

‘22. Application for condonation of late noting of an appeal or review

A party wishing to apply for condonation of the late noting of an appeal or review shall do so in form LC1.

An application in terms of this rule shall be accompanied by a draft of the intended notice of appeal or review.’

In the present application the applicant delayed approaching the court after his dismissal from the respondent’s employ. When he eventually approached the Court, he was out of time. The matter was therefore struck off the roll by Order of this Court issued on 30th October 2023.The delay is five months. He asserts that he was not legally represented. The record shows that he was not represented by the 7th June 2023 when he was dismissed .

However, by 15th June 2023 he had already engaged legal practitioners (page32/54 of the record). This is therefore not a reasonable excuse. Further ,in the event that there was an error on the part of the applicant’s legal practitioners, an error by a legal practitioner ‘is not by

itself a sufficient reason for the condonation of a delay in all cases.’Kombayi v Berkhout (above).

It was argued on behalf of the applicant that there are prospects of success on the merits as illustrated by the grounds for review. The grounds for review allege that there was non- compliance with the applicable code in the manner that the applicant was advised of the charges that he was facing; that he was denied the fundamental right to legal representation and that the Chairperson of the Disciplinary Committee was biased and the Disciplinary Committee was not properly constituted. On the contrary it was argued on behalf of the respondent that since the date of dismissal that is, 7th June 2023 the applicant was free to approach the Court. Further on the question of legal representation , it was argued that he was granted the opportunity to do so on two sittings during the course the proceedings but that he declined from doing so. It was only during the third sitting , so the argument goes, that he then sought a postponement which was for reasons given, declined. On the question of bias, it was argued that bias must be proven. The applicant has not done so. It was also argued that the applicant’s representatives walked out during the disciplinary proceedings and this cannot be a reason to complain about the constitution of the disciplinary committee. It was argued further that the draft notice for review has no prayer and therefore defective.

Under the circumstances ,Ms Katsande, who appeared on behalf of the respondent submitted that the application ought to be struck off the roll.

As shown above, r22 of the Rules of this Court requires that the application for condonation must be accompanied by the draft grounds. The draft grounds are there but there is no prayer. This means that the intended draft is defective. The application is therefore not properly before the Court. This is sufficient to have the matter struck of the roll. However, it is worth commenting on the grounds for review. There are allegations of non- compliance with provisions of the applicable code. However, there is no proof that the applicant suffered

prejudice as a result. There are allegations of bias. Bias has not been proven. As for the constitution of the committee , where either the litigant or the representatives walk out of disciplinary proceedings, they run the risk of having the proceedings conducted and concluded in their absence. This is what happened in casu. The Supreme Court has held that not all irregularities vitiate disciplinary proceedings. Tachiwana Nyahuma v Barclays Bank (Private) Limited SC67/05. I find that the irregularities alleged cannot vitiate the proceedings .They have no merit. The prospects of success are therefore slim.

It was in view of the foregoing that the application for condonation for late filing an application for review was found to be improperly before the Court, defective and struck off for non-compliance with r22 with no order as to costs.

J. MAMBARA &PARTNERS, LEGAL PRACTITIONERS FOR THE APPLICANT.

MAGUCHU&MUCHADA, BUSINESS ATTORNEYS, RESPONDENT’S LEGAL PRACTITIONERS.