Ndinasheshe R Mabheka v Myramar Farming t/a Cottzim

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/485/2016
HARARE, 7 JULY 2016 &
CASE NO LC/CON/H/139/2013
19 AUGUST 2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/485/2016

HARARE, 7 JULY 2016 &				    CASE NO LC/CON/H/139/2013

19 AUGUST 2016

In the matter between

NDINASHE R MABHEKA						       APPLICANT

And

MYRAMAR FARMING t/a COTTZIM				    RESPONDENT

Before the Honourable Murasi J

The Applicant in Person

No Appearance for the Respondent

MURASI J:

This is an application for condonation for late noting of appeal. The applicant was employed by the respondent. Following allegations of misconduct, the applicant was brought before a disciplinary committee. The applicant was charged with gross negligence. It was alleged that the applicant had been entrusted with an amount of $18 000 which was to be paid to the respondent’s employees as salaries. It was averred that the applicant had alleged that he had left this sum of money at the spot where he had had a breakdown with the motor cycle he was using. The applicant had alleged that when he went back to the spot, he was unable to locate the cash in question. The disciplinary committee found him guilty and recommended his dismissal The applicant subsequently took his matter to arbitration. The arbitrator confirmed the decision of the disciplinary committee.

In his oral submissions the applicant stated that the delay in filing the appeal had been occasioned by the fact that he had sought clarifications with the arbitrator concerned. The arbitrator had later been taken ill and passed on before he had attended to the applicant’s queries. The applicant further stated that he had waited for the appointment of another arbitrator to deal with his matter. He submitted that it was this arbitrator who informed him that the matter should be taken up with a superior court. The applicant further averred that due to financial challenges, he was unable to timeously make the application as a friend had informed him that the time for filing an appeal with this court had lapsed. As to the prospects of success on appeal, the applicant pointed out that the hearing was fraught with irregularities and the arbitrator had not taken his submissions into account when he made the decision on the matter. He further argued that a different tribunal would arrive at a different conclusion on the same facts.

It is trite that condonation of failure to file an appeal timeously is an indulgence which may be granted at the discretion of the court. An applicant must satisfy the court that there are compelling reasons or circumstances which justify a finding in his or her favour. Candidness and honesty are important requirements in such applications. Precedent has shown that certain criteria have to be satisfied in the determination of such applications. These include, inter alia, the extent of the delay and the reasonableness of the explanation, the prospects of success on appeal, the interest of the court in finality of the judgments and the prejudice to the other party.

A reading of the record shows that the applicant became aware of the arbitral award on 13 May 2013. The applicant then chose to write to the arbitrator who had dealt with his matter on 14 May 2013. It is pertinent to note that the applicant did not attach this letter to his application which letter would have shown what he was seeking from the arbitrator. The applicant further stated that when the arbitrator passed away, he waited for another arbitrator to be appointed. The question is, how was the new arbitrator to assist him as the deceased one had completed his matter? This, the applicant does not disclose to the court. The new arbitrator is said to have assumed office in August 2013. The applicant alleges that it was this arbitrator who informed him in August 2013 that he needed to file his matter with a “superior court”. The applicant did not file any application until 19 December 2013. The applicant has not proffered any explanation for the period between August 2013 and December 2013 save to state that a friend informed him that he needed to file an application for condonation for late filing of the appeal. The applicant does not inform the court as to when he received the information. The question that arises is whether the applicant has tendered a reasonable and acceptable explanation in the circumstances.

Precedent has dealt with similar cases. In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) SANDURA JA (as he then was) had this to say at 315 E:

“It is, therefore, well established that the court has a discretion to grant condonation when the principles of justice and fair play demand it and when the reasons for non-compliance with the rules have been explained by the applicant/appellant to the satisfaction of the court.”

The applicant has not tendered an explanation as to what clarifications he sought from the deceased arbitrator without filing his appeal. Even with the demise of that arbitrator, the applicant has not opened up as to what he needed from the new arbitrator instead of filing the appeal. After the new arbitrator had informed the applicant to file his appeal with this court, the applicant does not explain why it took him close to five (5) months to file the present application. MULLER JA had this to say in P E Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) td 1980 (4) SA 794 (A) at 799 D-E:

“In a case such as the present, where there has been a flagrant breach of the Rules of this court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.”

The above cited passage applies with equal force to the instant case. It is the court’s view that the applicant has not tendered a reasonable and acceptable explanation in the circumstances.

The court further views the applicant’s prospects of success on appeal as non-existent in this case. Firstly, the purported grounds of appeal are actually grounds for review. Secondly, the grounds of appeal do not comply with the provisions of section 98 (10) of the Labour Act [Chapter 28:01]. They are not on points of law. Without even going into the merits of the case, the preliminary issues show that there are no prospects of success on appeal.

It is for the aforestated reasons that the court is of the view that the application must fail.

The court makes the following order:

The application for condonation for late filing of the notice of appeal is hereby dismissed.

There is no order as to costs.