Noble Toto v Totila Marketing (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/620/2016
HARARE, 2 FEBRUARY 2016 &
CASE NO LC/H/APP/1155/2015
7 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/620/2016

HARARE, 2 FEBRUARY 2016 &			  CASE NO LC/H/APP/1155/2015

7 OCTOBER 2016

In the matter between

NOBLE TOTO							APPLICANT

Versus

TOTILA MARKETING (PRIVATE) LIMITED			RESPONDENT

Before the Honourable E Makamure J

The Applicant in Person

For the Respondent   E Mangezi (Legal Practitioner)

MAKAMURE J:

This is an application for condonation of late filing of an application for review. At the end of the hearing the application was dismissed. Reasons were to follow. These are they. In order for the application to succeed the court considers, among other things the following factors, namely,

the extend of the delay;

the explanation for the delay; and

Prospects of success should the matter be heard on the merits.

(See Maxwell Mwanyisa v The Minister of Finance & Controller of Printing & Stationery & PSC HH 65-01); Eugene Kondonani Chimpondah & Tidings Chimpondah v Gerald Pasipamire Muvami HH 81-2007).

The applicant was employed by the respondent.He was initially charged for misconduct in terms of the Transport Operating Collective Bargaining Agreement Statutory Instrument 67/2012 (SI 67/2012). On May 8, 2015 those charges were withdrawn. This was done in consultation with the applicant’s legal practitioners. The employer then proceeded in terms of the National Code of Conduct, Statutory Instrument 15/06. During that same period when he was facing misconduct charges, the Supreme Court decided the case of Don Nyamande & Kingstone Donga v Zuva Petroleum (Pvt) Ltd SC 43-15 (Zuva). In that case it was held that it is lawful for an employer to terminate an employee’s contract of employment on giving them three months’ notice. As a result of the Zuva case, the respondent on 23 July 2015 proceeded to terminate the applicant’s employment on three months’ notice.

The applicant herein is aggrieved as to why his employment was terminated on three months’ notice instead of in terms of S I 67/2012. However despite his grief, he did not appeal in time. He says he did not file his appeal timeously because he waited until a Bill which was still pending was passed into law. The purpose of that Bill would be to mitigate the anticipitated flood ofterminations of employment which were based on the Zuva case. The applicant’s employment with the respondent was terminated on 23 July 2015. However,he only filed this application on 22 September 2015.

After the Bill became law, that is the Labour Amendment Act 5/2015, the applicant then lodged the present application (i.e on 22 September 2015). He says the fact that he waited for the Labour Amendment Act 5 of 2015 to be promulgated into law is a reasonable explanation for the delay. He avers that the delay is not inordinate. At the time that he was supposed to lodge the application he was legally represented.The record shows that his lawyers wrote a letter to his employer threatening to initiate certain court papers with this court. That did not happen. There is no explanation why this was not done.

One wonders whether there is wisdom in waiting for a bill to be passed into law before seeking recourse. What if the bill never becomes law?  Can this be used as a reasonable explanation for delay? What is of importance is that the appellant was aggrieved by the course taken by the respondent in parting ways with him or in terminating his employment. He realized that he needed the intervention of the court. Applicant should have approached the court immediately after realising the need to do so. This is particularly so since he was legally represented. The Bill he is referring to did not stop the operations of the court. His erstwhile legal practitioners ought to have filed the application for review within the stipulated time period stipulated by the rules. In the circumstances he should have timeously approached the court.

Applicant’s  relief lay with the court and not with the Bill. Obviously if what is now law is  supportive of his claim, his case would be strengthened. But to simply wait for a certain law to be passed before approaching the courts cannot make a reasonable explanation. Had it been intimated that the operations of the Labour Court had been stalled by the passing of the new law, then his reason would probably be acceptable and understandable. This was not so. The Labour Court was operational during the period when the amendment in question was going through the various stages before becoming law.  This therefore means that the reasons for the delay are not satisfactory. As indicated above, he ought to have approached the court without delay. The extent of the delay which was based on the above mentioned reasons, has not been satisfactorily explained.

On the prospects of success, the applicant chose to address the court on the provisions of S I 67/12.  On the other hand, he is aggrieved by termination of employment in terms of S I 15/06. I believe that ultimately he wanted a chance to show or prove the impropriety of the termination of his employment in court. However, he did not address the contents of the letter terminating his employment. Had he done so, the court would have an idea as to whether or not there were any prospects of success on the merits. I am not sure why he did not address that letter since it is the basis of his grief. In the result therefore the prospects of success are non-existent.

In view of the above I found that there was no merit in the application for condonation of late filing of an application for review.

Accordingly the application was dismissed.

Mangezi & Partners, respondent’s legal practitioners

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