Naison Mambeu Chikamhi v Chitungwiza Municipality

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/630/2013
HELD IN HARARE, NOVEMBER 1, 2013
CASE NO. LC/H//10
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/630/2013

HELD IN HARARE, NOVEMBER 1, 2013		CASE NO. LC/H//10

In the Matter Between

NAISON MAMBEU CHIKAMHI				APPLICANT

And

CHITUNGWIZA MUNICIPALITY			       	RESPONDENT

Before The Honourable E. Makamure : Judge

For The Applicant 	:	Miss M. Kenende (Legal Practitioner)

For The Respondent	:	Mr R. Matsikidze (Legal Practitioner)

MAKAMURE, J.

This is an application for condonation of late noting of an appeal.  In other words the applicant wants this court to consider that although he has come late, he could not avoid coming late and further he has good chances of winning the case should the matter be heard on the merits.  In order for the application to succeed the following consideration must be made:

Whether the extent of the delay was inordinate regard being heard to the circumstances of this case.

Whether there is a reasonable explanation for the delay.

Whether there are prospects of success should the matter be heard on the merits (see Chubb Union Zimbabwe P/L v Chubb Union Workers SC 1/2001 which has continued to be quoted with approval).

It is clear in this matter that the applicant delayed by a period of about a month due as he would want the Court to believe, to lack of funds.  As soon as he was in funds he … the instructed appropriate legal practitioner.  While this may be so, the applicant has not fully addressed the merits of this matter.  In his grounds of appeal he does not raise any points of law.  Even if the matter were to go on review, the question of audi rule would not succeed because there is proof that he was given a chance to present his case as envisaged by the principles of natural justice as enunciated in the case of Chataira v ZESA SC 83/01.  Further when one has regard to the facts, it is common cause that the applicant provided a client with his personal bank account instead of either declining to do so or simply referring that client to the appropriate office at the respondent institution.

The client clearly was on respondent’s business and not on applicant’s personal affairs.  This it was inappropriate for the applicant to give his personal bank account number (for whatever reasons) unless he had tacit authority to do so from the respondent – for purposes of transacting respondent’s business.  I find this to be inappropriate.  So apart from there being no proper grounds of appeal, success on the merits have not been adequately addressed.  This means that the chances of success are slim.

Mr Matsikidze has appropriately made an application for an award of costs on the higher scale.  The application is supported and I did not hear Ms Kendende for the applicant to oppose it.  However I am of the view that an order for costs on the ordinary scale will meet the justice of the case.

In view of the above I find that the requirements of the application have not been met.

The application fails.

Accordingly, it is ordered that the application be and is hereby dismissed with costs.